O'Malley and Repatriation Commission (Veterans' entitlements)
[2018] AATA 878
•12 April 2018
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, 196BCASES
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 (3rd 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 her service, she has developed certain mental health disorders which render her eligible for a pension at the “special rate”.[4] This contention arises from two separate claims, each of which was submitted to the Department of Veterans’ Affairs (“the Department”) by the Applicant in 2014.
[4] See e.g. Exhibit 1, Applicant’s SFIC.
Procedural History
The first claim was received by the Department on 23 April 2014,[5] and the Applicant sought “to be considered as a veteran who is totally and permanently impaired for paid work because of the effect of my right hip.”[6] The Applicant also sought to assert a right to compensation for osteoarthritis in each of her hips and constant pain in them.[7]
[5] Exhibit 12, T-Documents, p 129.
[6] Ibid, p 139.
[7] Ibid, pp 131-132.
This claim was considered by a delegate of the Repatriation Commission (“the Respondent”) in a decision dated 16 June 2014.[8] The delegate accepted the Applicant’s claim of osteoarthritis of the right hip, but rejected her claim for osteoarthritis of the left hip.[9] The delegate concluded that the Applicant was eligible to receive the disability pension at 80% of the General Rate.[10]
[8] Ibid, pp 174-180.
[9] Ibid, p 174.
[10] Ibid, pp 179-180.
The Applicant sought review of this decision by the Veterans’ Review Board (“the VRB”) on 8 July 2014.[11] In a decision dated 21 July 2014, delegate of the Respondent reconsidered the earlier decision and accepted that the Applicant’s left hip injury was service-related.[12] However, the delegate still found that the Applicant was only eligible to receive the disability pension at 80% of the General Rate.[13]
[11] Ibid, pp 186-188.
[12] Ibid, pp 212-217.
[13] Ibid.
After receiving the reconsideration decision of the second delegate, the Applicant sought to withdraw her application to the VRB insofar as it sought review of a decision relating to her left hip.[14]
[14] Ibid, p 224.
The second claim received by the Department was received on 10 July 2014. The Applicant sought to claim compensation for an “adjustment disorder with mixed anxiety & depressed mood” on the basis that this injury was war or defence caused.[15] The Applicant in part attributed this injury to the pain she was suffering arising from her accepted right hip injury and other accepted injuries.[16]
[15] Ibid, p 191.
[16] Ibid.
A delegate of the Respondent considered the Applicant’s second claim in a decision dated 3 November 2014.[17] The delegate found that the Applicant’s mental health issues were not related to her service,[18] as “non service related neck conditions have made a significant contribution to the development of [the Applicant’s] adjustment disorder with mixed anxiety and depressed mood”.[19] The Applicant requested review by the VRB of this decision on 20 November 2014.[20]
[17] Ibid, pp 259-261.
[18] Ibid, p 259.
[19] Ibid, p 261.
[20] Ibid, p 262.
The VRB, in a decision dated 8 February 2016, considered both of the Applicant’s claims together, and affirmed each of the delegates’ decisions.[21] Importantly, the VRB did not delve into the Applicant’s left and right hip conditions, presumably on the grounds that liability had already been accepted for them. Additionally, in any event, the Applicant had previously indicated that she sought to withdraw her application for review of the first delegate’s decision insofar as it related to her left hip injury, liability for which had been accepted by the Respondent.
[21] Ibid, B 2.
Consequently, the two issues the VRB grappled with were: (1) whether the Applicant’s adjustment disorder with mixed anxiety and depressed mood was related to her service; and (2) whether the Applicant is entitled to a disability pension at a rate higher than 80% of the General Rate.[22]
[22] Ibid.
The VRB’s Findings
The VRB was reasonably satisfied that the Applicant had been diagnosed with the condition of “adjustment disorder with mixed anxiety and depressed mood”.[23] Consequently, it turned its attention to the factors necessary under the relevant Statement of Principles (“SoP”) in order to establish a causal connection between the Applicant’s service and her adjustment disorder condition. Notably, SoP No 38 of 2008 was referenced by the VRB as providing that the following is a relevant factor for showing that such a causal relationship exists:
6(h) having chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder;
“chronic pain” means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;[24]
[23] Ibid, B 8.
[24] Ibid, B 8.
The VRB found that the Applicant:
was likely to have experienced pain from her VEA accepted back and knee conditions prior to the clinical onset of her adjustment disorder in 2010. However the Board was of the opinion that the level of pain in 2010 from those conditions alone as related by the applicant would not constitute chronic pain as required to meet the definition of chronic pain in SOP 38 of 2008.[25]
[25] Ibid, B 12.
On the basis of this finding, the VRB affirmed the delegate’s decision relating to the Applicant’s adjustment disorder.[26] Additionally, the VRB was not satisfied that the Applicant’s accepted injuries alone prevented her from working eight hours per week.[27] Rather, it found that she could likely work at least twenty hours per week,[28] and that she had ceased to undertake remunerative work due to her other, non-service-related, injuries.[29] Consequently, the VRB found that the Applicant was not entitled to the special rate pension.
[26] Ibid, B 13.
[27] Ibid, B 14.
[28] Ibid.
[29] Ibid, B14-B15.
I note that at no stage in the proceedings before this matter came to the Tribunal did the Applicant raise the issue of her allegedly suffering from post-traumatic stress disorder (“PTSD”).
After being sent a letter dated 23 February 2016, notifying her of the VRB’s decision, the Applicant lodged an appeal against its decision on 17 March 2016. It is this appeal which is presently before me.
THE ISSUES IN DISPUTE
On the basis of the above history, and the written and oral submissions of the Applicant and the Respondent, I have ascertained that the following issues are in dispute:
(a)Whether the Applicant suffers from her claimed condition of “adjustment disorder with mixed anxiety and depressed mood”;
(b)Whether that condition is related to her eligible service;
(c)Whether the Applicant can validly claim for PTSD; and
(d)Whether the Applicant can claim the pension at the special or intermediate rate.
In her final submissions, the Applicant raised the prospect of another claim – this time for Major Depressive Disorder.[30] This is a matter of short compass and one that I will deal with before moving to determining whether the Applicant can claim the pension at either the special or intermediate rates.
[30] See Applicant’s Final Submissions received 15 August 2017, [1]-[4].
I will now address these issues.
CONSIDERATION
Adjustment disorder with mixed anxiety and depressed mood
Does 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?
While SoP No 38 of 2008 was in force at the time of the VRB’s decision, a new SoP is now in place regarding cases of adjustment disorder, superseding SoP 38 of 2008: SoP No 24 of 2016. Thus, I am faced with the question of which SoP to apply. This was discussed by Stone J in Gorton v Repatriation Commission,[40] at [23]-[24]:
[23] …The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim…
[24] …In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable…[41]
[40] (2001) 63 ALD 723, FCA 286. Although this case was appealed to the Full Court of the Federal Court of Australia, that appeal was dismissed and Heery J.
[41] Ibid at [23]-[24].
Although this case was appealed to the Full Court of the Federal Court of Australia, that appeal was dismissed.[42] In that appeal, Heery J discussed this question thus:
[43] I have framed the question in this way because in my view the problem does not involve any question of election on the part of a claimant. Rather the system operates in the following way. Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which "is in force": s 120A(3); see s 43 AAT Act. If the current SoP "upholds" the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
[44] If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
[45] The claim for a pension under s 13 is in respect of death which was war-caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50.
[46] Thus I would reach the same result as the primary judge.[43]
[42] See Repatriation Commission v Gorton [2001] FCA 1194, (2001) 110 FCR 321, (2001) 65 ALD 609, (2001) 33 AAR 370.
[43] Ibid at [43]-[46].
Conversely, Allsop J (as His Honour then was, and with whose reasons Emmett J agreed)[44] was “…of the view that the Tribunal is bound to apply the SoP current at the time of the hearing before it.”[45] However, His Honour also recognised that the Full Court decision in Repatriation Commission v Keeley[46] should not be overturned. Consequently, His Honour formed the following opinion:
…Subsection 120A(3) makes it clearly compulsory for the Commission to examine the current SoP. In exercising the review under s 43 of the AAT Act I see no reason why the direction under subs 120A(3) does not bind the Tribunal. The only additional factor which the Tribunal must consider, if it comes to a view that the application of the current SoP leads to a conclusion that the injury, disease or death was not service caused, is that the claimant also has an accrued right to have his or her position judged by reference to the SoP in force at the date of the Commission's decision by force of the decision in Keeley.
… There is no reason why that ultimate causal question may not be influenced or affected by more than one SoP. The condition of the veteran may raise different medical problems and so different SoPs. There is no violence done to the Act by requiring the Tribunal, in its review under s 175 of the Act and s 43 of the AAT Act of the question of the entitlement and the causal question bound up in that, to examine the current SoP (perforce of subs 120A(3) and s 43) and the repealed SoP (perforce of Keeley).[47]
[44] Ibid at [51].
[45] Ibid at [58].
[46] [2000] FCA 532; (2000) 98 FCR 108.
[47] Repatriation Commission v Gorton [2001] FCA 1194 at [63]-[64] (Allsop J).
Allsop J concluded:
[66] If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of "election". It is a sequential approach mandated by a combination of the Act and the Full Court's decision in Keeley.[48]
[48] Ibid at [66].
The process set out by Allsop J (with Emmett J agreeing) has the same essential effect as that of Stone J at first instance (and, after all, the appeal was dismissed): the starting point for the Tribunal must be the SoP that is in force at the time of the Tribunal’s review. If that does not lead to an outcome favourable to the applicant, the SoP in force at the time of the claim should also be considered, to see if it gives rise to a different result.
SoP No 24 of 2016
Thus, I begin my consideration with reference to SoP No 24 of 2016 “Statement of Principles concerning Adjustment Disorder”. Under this SoP, the Applicant must, at paragraph 9(8), exhibit the following symptoms:
having persistent pain of at least three months duration at the time of the clinical onset of adjustment disorder
“Persistent pain” is defined in Sch 1 as:
(a)continuous pain; or
(b)almost continuous pain; or
(c)frequent, severe, intermittent pain;
which is severe enough to interfere with usual work or leisure activities or activities of daily living.
However, it is not enough for me to be satisfied that the applicant suffers from “persistent pain” for the SoP requirements to be met. This is because of paragraph 10(1) of the SoP, which states:
The existence in a person of any factor referred to in section 9 must be related to the relevant service rendered by the person.[49]
[49] SoP No 24 of 2016, para 10(1).
Thus, I must make two findings for the Applicant to be successful on this ground: that the Applicant suffered from “persistent pain” in the three months before the clinical onset of her adjustment disorder; and that this pain was related to her service.
Turning to the first of these limbs, I must start by determining when the clinical onset of the Applicant’s adjustment disorder was. In her application form, the Applicant said she first became aware of the symptoms of this condition in February 2011.[50] As the clinical onset of a disease occurs “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present”,[51] and because there is no assertion to the contrary, I am satisfied that the onset of the Applicant’s adjustment disorder was in February 2011. I must therefore look towards whether the Applicant was in persistent pain that was service-related in, at least, the three months preceding February 2011.
[50] Exhibit 12, T-Documents, p 191.
[51] See Re Robertson and Repatriation Commission [1998] AATA 127, 50 ALD 668, [23].
It is clear that the Applicant suffers – and suffered – from a number of conditions which give rise to pain in her daily life. It is accepted by the Respondent that she suffers from bilateral osteoarthritis of her hips and knees as well as lumbar spondylosis.[52] However, it is also apparent that the Applicant suffers from a number of other conditions which cause her pain, including rotator cuff syndrome of her left and right shoulders, and cervical spondylosis with left foraminal stenosis and C7 radiculopathy.[53] The Applicant also appears to have – or have suffered from in the past – a left ankle condition.[54]
[52] Exhibit 12, T-Documents, Veteran Community Details Report.
[53] Ibid.
[54] Exhibit 3, Enclosure 9.
In this context, I am faced with the difficult task of determining whether, if one were to set aside her conditions that are not service-related, the Applicant can still be considered as suffering from “persistent pain” in the three months prior to February 2011.
In his letter dated 3 May 2016, Dr Jeff Taylor, consultant psychiatrist, referred to “chronic pain associated with various orthopaedic conditions” (emphasis in the original) as underlying the Applicant’s depression, “especially in relation to nerve impingement at the C6 level and problems involving her left elbow”.[55]
[55] Ibid, Enclosure 8.
Dr Curtis Gray, another consultant psychiatrist, also made mention of the Applicant’s pain as having an effect on her mental health, in a report dated 21 September 2016.[56] Dr Gray said that in an interview on that same day, the applicant “was troubled by pain in her neck and hips, and a vomiting condition”.[57] I note that the lumbar spine – where the Applicant’s accepted spinal condition lies – is in the lower back.
[56] Ibid, Exhibit 10.
[57] Ibid.
In support of its argument that the Applicant’s accepted conditions did not cause her “persistent pain”, the Respondent referred to the following reports and evidence it says were relied upon by the VRB:[58]
(a)Two reports of Dr Richard Emery, “dated 3 November 2010 and 3 November 2011”;[59]
(b)A report of Dr Paul Trott dated 7 September 2011;[60]
(c)A report of Dr Barbara Gynther dated 17 March 2011;[61]
(d)A claim form lodged by the Applicant and dated 29 March 2011; and
(e)The fact the Applicant apparently required hospitalisation and received nerve block treatment.[62]
[58] See Exhibit 8, Respondent’s Facts and Contentions, [5.13].
[59] I surmise that there may be a typographical error in this. The Tribunal was provided a report of Dr Emery dated 3 August 2011. Although the reasons for the VRB’s decision do make reference to a report of Dr Emery dated 3 November 2010, that report does not appear to have been provided to the Tribunal. For the 3 August 2011 report: See Exhibit 12, T-Documents, pp 53-69.
[60] See Exhibit 12, T-Documents, pp 70-78.
[61] Ibid, pp 25-30.I note that this constitutes Dr Gynther’s notes, which state that a medical certificate was issued on that visit. It does not appear that this medical certificate has been put before the Tribunal. I find it concerning that documents that have been put before the VRB have apparently not been deemed sufficiently relevant to be put before the Tribunal, even though they were referenced both in the Respondent’s submissions and in the decision under review.
[62] Exhibit 8, [5.13(e)].
While, for whatever reason, I do not have the benefit of the reports of Dr Emery referenced by the Respondent, I do have the benefit of one dated 3 August 2011.[63] In that report, Dr Emery noted the Applicant suffered “Depression as a result of the pain” of her conditions, and noted that 75% of the Applicant’s impairment “is attributable to lumbar spondylosis”.[64] Dr Emery also said the Applicant was prevented from undertaking employment solely because of her “Cervical spondylosis and depression”.[65] Ultimately, this report provides a confused perspective on whether the Applicant’s pain and impairments are predominantly caused by cervical or lumbar spine conditions. However, the weight of the report it seems to favour the assertion that cervical spondylosis – which is not an accepted condition of the Applicant – has an impact on the Applicant’s function and mental health, although the lumbar condition also has some effect.
[63] Exhibit 12, T-Documents, pp 53-69.
[64] Ibid, p 54.
[65] Ibid, p 55.
Dr Trott’s report is rather clearer. He accepts that the sum of the Applicant’s conditions have caused her to suffer a “chronic pain syndrome”, and attributes this to the following conditions in particular: “lumbo sacral strain, bilateral chondromalacia patella, lumbar spondylosis, C6 nerve impingement, rotator cuff syndrome of the left shoulder and rotator cuff syndrome of the right shoulder”.[66] Dr Trott said the Applicant’s “C6 nerve impingement resulted in reduced left arm function, with weakness and chronic pain”.[67] Dr Trott concluded that the Applicant’s mental health condition “manifested in response to the challenge of chronic pain, and mild loss of function to her left arm, whereby she had unfortunately suffered a C6 nerve impingement resulting in pain and weakness.”[68]
[66] Ibid, p 70.
[67] Ibid, p 71.
[68] Ibid, p 74.
The assertion that the Applicant’s pain has caused her to suffer from an adjustment disorder condition was supported more recently by a 2014 report by Dr Anand Gundabawady, a consultant psychiatrist.[69] Unfortunately, Dr Gundabawady did not mention which conditions specifically caused this.
[69] Ibid, p 242.
Importantly, Dr Trott was referring to the C6 nerve impingement the Applicant suffered “during pool rehabilitation for her recent left knee procedure”.[70] This is substantiated by a contemporaneous Claimant Report prepared by the Applicant and provided to the Respondent. There, the Applicant claims she suffered this injury on 18 September 2010 “whilst doing swimming rehabilitation in the physio pool”.[71] An additional standard form Medical Report by Dr Emery refers to the date of onset of this injury as being in September 2010.[72] However, Dr Emery, who specialises in treating spinal complaints, apparently preferred the diagnosis of “chronic neck pain”, with spondylosis present in the C5/C6 and C6/C7 areas,[73] although he “cannot comment on the C6 nerve root impingement”.[74]
[70] Ibid, p 75.
[71] Ibid, p 51.
[72] Ibid, p 57.
[73] Ibid, p 59.
[74] Ibid, p 53.
In light of this evidence, I consider that although the phraseology used by Dr Trott, a consultant psychiatrist, was of “C6 nerve root impingement”, the better view is that his evidence was relating back to a more general issue the Applicant had with her cervical spine that she suffered whilst undergoing rehabilitation in the pool. The Applicant did lodge a claim for compensation for this injury, which was rejected by the Respondent on 11 November 2011.[75]
[75] Ibid, p 79.
In a report dated 19 October 2012, Dr Paul Robinson, an orthopaedic surgeon, described the Applicant’s cervical spine issues thus:
The symptoms she has in her neck she relates to swimming which would be an unusual presentation for a condition of spondylitis which is seen on the x-rays. It would be my belief that this is more of a constitutional problem which would have arisen in any event without any such activity she describes in the pool.
…
These conditions are thus constitutional in nature and related to problems which were not caused by her Defence Force service.
She does have cervical problems which has been stated in a report I viewed dated the 5/10/2010 that the liability includes a C6 nerve impingement. Thus it has been decided that this pathology is related to her military service, although this is debatable as mentioned.[76]
[76] Ibid, p 103.
I have not had the benefit of viewing any report dated 5 October 2010, so I simply cannot make a finding on the basis of what Dr Robinson claims it said. In that context, I find the rest of Dr Robinson’s report substantially more persuasive – it seems that the Applicant’s cervical spine issues are related to a constitutional issue.
On 7 November 2012, a delegate of the Respondent refused the Applicant’s claims as they related to cervical spondylosis.[77] The Applicant sought review of the delegate’s decision on 26 February 2013.[78] For whatever reason, upon review of the delegate’s decision on 1 October 2013, the VRB did not deal with the cervical spine elements of the Applicant’s claim.[79] Rather, it only focused on the Applicant’s hip conditions. It seems that the Applicant simply did not contest the delegate’s findings that her cervical spine conditions were not related to her service. Consequently, I will not go behind the delegate’s finding that the Applicant’s cervical spine conditions are unrelated to her service.
[77] Ibid, p 112.
[78] Ibid, p 118.
[79] Ibid, p 123.
In a report dated 18 September 2014, Dr Neva Shebini, a consultant psychiatrist, referred to the Applicant’s cervical spine condition and rotator cuff injuries, in addition to her lower back, knee and foot injuries as causing her pain and impacting on her lifestyle.[80] I note that, of those conditions, only the Applicant’s lower back and knee conditions have been accepted as service-related. Additionally, the Applicant’s ankle or foot condition arose in 2013,[81] well after the clinical onset of her adjustment disorder.
[80] Ibid, p 249.
[81] Ibid, p 202.
Finally, I note that Dr Riccardo Caniato, in his report dated 30 January 2014, noted that the Applicant “did not appear in pain during the interview”.[82] The Applicant disputes this, on the grounds that this observation was “speculative in nature, was not confirmed and [the Applicant] was medicated and severely sleep deprived at the time”.[83] While I take the Applicant’s point that Dr Caniato did not appear to ask the Applicant about whether she was in pain – and so could not know whether the Applicant was on medication to help her manage her pain – I do nevertheless note that, at the time of her interview with Dr Caniato, the Applicant did not appear to him to be in pain, and pain did not appear to be preventing her from engaging in the interview with him. In any event, this report does not refer back to the time of the clinical onset of the Applicant’s adjustment disorder, and so is of little relevance here.
[82] Exhibit 10, Medical Assessment of Dr Caniato dated 30 January 2017, p 5.
[83] Exhibit 14, Applicant’s Notes about Dr Caniato report, p 2.
Having reference to all of the above, I find that the Applicant was in “persistent pain” for at least the three months prior to the clinical onset of her adjustment disorder, in February 2011. However, I am not reasonably satisfied that this pain can predominantly be related back to the Applicant’s service. Rather, it seems to me that it is related to her cervical spine condition. Although I accept that her other conditions contributed to the pain she was in – and thus to her adjustment disorder – I am reasonably satisfied that the timing of the onset of her cervical spine condition, as well as the evidence of the impact it was having on her life, supports the proposition that this condition was the main contributor to the pain that caused the Applicant to suffer from an adjustment disorder.
Further, there is insufficient evidence before me to suggest that the Applicant’s other conditions cause her pain to such a level that it could be considered “persistent pain” for the purposes of the SoP. As the Respondent’s delegate found in 2012 that her cervical spine condition was unrelated to the Applicant’s service, and the Applicant has not sought to dispute that finding further, I therefore cannot find that the Applicant’s condition satisfies the SoP. It follows that the Applicant’s adjustment disorder is not, under SoP No 24 of 2016, related to her service.
SoP No 38 of 2008
As I have found that causation cannot be established in accordance with the SoP that is presently in force, I now turn to determining whether the Applicant can succeed under the superseded SoP, No 38 of 2008.
Under SoP No 38 of 2008, the Applicant must, relevantly, have had “chronic pain of at least three months duration at the time of the clinical onset of adjustment disorder”.[84] “Chronic pain” is defined thus:
"chronic pain" means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;[85]
[84] SoP No 38 of 2008, para 6(h).
[85] Ibid, para 9.
This test is very similar to the one for “persistent pain” under SoP No 24 of 2016. However, as with that test, it is not enough for the Applicant to show that she suffers from the type of pain referred to in the SoP. Rather, the presence of the factor “must be related to the relevant service rendered by the [Applicant]”.[86]
[86] Ibid, para 5.
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.
PTSD
Does 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).
For the VRB to review a decision of the Respondent under s 135 of the Act, the person seeking review must, relevantly, have made a claim for a pension or an application for an increased pension in accordance with ss 14 or 15, and that claim or application must have been the subject of a decision of the Respondent.[92] Thus, the Tribunal only arises jurisdiction where these steps have been satisfied.
[92] Ibid, s 135(1).
Crucially for the Applicant, no claim relating to PTSD was ever raised with, or considered by either the Respondent or the VRB. This is problematic because “…if no primary decision has been made on an issue, there is no scope for the decision to be reviewed”.[93]
[93] Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016) 497, citing Re Brearley and Repatriation Commission (No 2) (1986) 9 ALD 291.
Ultimately, then, because no decision was ever made by the VRB or by the Respondent on the issue of whether the Applicant suffers from PTSD, it has not been subject to a decision under s 135 of the Act, so the Tribunal lacks jurisdiction to hear it. The appropriate forum in which the Applicant could seek a determination of whether her purported PTSD is linked to her service would be by lodging a fresh claim for that condition.
Does the Applicant have a diagnosis of PTSD?
As I have found the Tribunal lacks jurisdiction to hear whether the Applicant suffers from PTSD, I need not proceed any further with this element of her claim. However, out of an abundance of caution, I will now address the alternative scenario: even if the Tribunal does have jurisdiction to hear the Applicant’s claim relating to PTSD, I nevertheless find that, on the evidence presently before me, she does not suffer from PTSD.
The Applicant’s contention is that she suffers from PTSD and “This was resultant of my involvement in a physical assault between two feuding grade 9 boys. The event has apparently triggered a repressed memory I have of a similar threat I was directly involved in whilst serving at HMAS NIRIMBA in 1989.”[94]
[94] Exhibit 3.
The Applicant relies on her treating General Practitioner, Dr Barbara Gynther and treating psychiatrists Dr Jeff Taylor and Dr Curtis Gray to support her contention that she suffers from PTSD.[95]
[95] Ibid.
It appears on the evidence before me that Dr Gynther first raised the spectre of PTSD in a letter to Dr Taylor dated 21 March 2016, where she wrote:
Thank you for seeing [the Applicant]… regarding whether her psychiatric, psychological and chronic pain illnesses may actually stem to a major degree from the consequences of and the manner in which she was discharged from the Navy at HMAS Cairns.
…
Her discharge was a huge trauma to her.
She has had rather stereotyped nightmares since.
…
Many of the aspects of this matter raise in my mind whether she has post-traumatic stress disorder. Her actual life was not threatened, but her entire sense of self was assaulted by the manner of and consequences of her discharge. She was rendered suicidal, with the ideation coming and going over the subsequent years…[96]
[96] Ibid, Enclosure 7.
Interestingly, Dr Gynther (1) did not make a positive diagnosis of PTSD, but rather mentioned that the Applicant had similar symptoms to what one might expect of someone suffering from that affliction; and (2) seemed to tie the mental health issues from which the Applicant was suffering to her discharge, not the assault which the Applicant now seeks to rely on.
Dr Taylor wrote in a reply dated 3 May 2016:
In your letter of referral, you question the possibility that this patient may suffer from some symptoms of post-traumatic stress disorder. In fact, she does suffer from a number of symptoms not inconsistent with the latter. For example, she suffers from frequent nightmares, which seem to relate at least in part to her time in the Navy. As you are aware, she had spent some time in the Australian Navy, in which she reached the rank of Petty Officer. Unfortunately, her time in the Navy did involve a significant amount of bullying by those of more senior rank. Clearly, some of what took place in the Navy was an affront to her personal integrity. Her nightmares involve themes of being lost, of not being correctly attired in relation to Navy uniform, and even of being kidnapped, et cetera. She is clearly chronically anxious. She is reactive to certain cues, particularly seeing someone in military uniform. She avoids driving past certain areas where she knows military personnel to be resident…
…
In summary, I would see this patient as having suffered from fairly chronic mixed anxiety and depressive illness. I tend to agree with you that this patient does exhibit a number of symptoms which point in the direction of post-traumatic stress disorder (PTSD). Whether her condition meets the full criteria for the latter will warrant further exploration.[97]
[97] Ibid, Enclosure 8.
Dr Gynther then referred the Applicant to Dr Curtis Gray,[98] another consultant psychiatrist who, in a report dated 21 September 2016, noted:
It has been quite difficult to establish the exact nature of [the Applicant’s] condition but there seems to be no doubt that she is struggling with problems within the anxiety/depressive spectrum, in the context of chronic pain and some post traumatic phenomenonology, if not post-traumatic stress disorder.[99]
[98] Ibid, Enclosure 9.
[99] Ibid, Enclosure 10.
Again, this report is fundamentally equivocal in nature and does not actually diagnose the Applicant with PTSD.
The Respondent, meanwhile placed particular emphasis on the report of Dr Riccardo Caniato, who also gave evidence at the hearing of this matter. Both at the hearing and in his written report, Dr Caniato was of the opinion that the Applicant was not suffering from PTSD.[100] Dr Caniato formed this opinion for three reasons:
1Comprehensive notes over many years show no symptoms of PTSD.
2The index stressor as described by [the Applicant] does not meet the A criterion for PTSD.
3I have reviewed assessments by a number of credible psychiatrists including Dr Gundabawady, Dr Ian Curtis, Dr Paul Trott, Dr Shaikh and myself, all of whom did not diagnose PTSD. In reviewing my previous assessment I am of the opinion that [the Applicant] does not suffer PTSD attributed in any way to military service.[101]
[100] Exhibit 10, Medical Assessment of Dr Caniato dated 30 January 2017, p 10.
[101] Ibid.
On the basis of the medical evidence before me, I am not satisfied that the Applicant has been diagnosed with PTSD, which is a necessary – and logical – precondition to being able to claim it. That is not to say that the Applicant does not suffer from PTSD. Rather, there is simply insufficient convincing evidence presently before me for me to make that finding. Consequently, even if the Tribunal had the jurisdiction to deal with this purported condition, I cannot find in the Applicant’s favour on this ground.
Conclusion: the Applicant’s claimed conditions
On the basis of the above, I make the following findings:
(a)The Applicant does suffer from adjustment disorder with mixed anxiety and depressed mood, but that condition is not linked to her service;
(b)The Applicant has not, on the evidence before me, been diagnosed with PTSD.
Can the Applicant also claim for Major Depressive Disorder?
In her final submissions, the Applicant seemed to expect that the Tribunal would examine a third possible diagnosis for her mental health condition, that of Major Depressive Disorder.[102] This seems to be a last-minute shift arising out of the Respondent’s contention that this is the appropriate diagnosis for her.[103]
[102] See Applicant’s Final Submissions received 15 August 2017, [1]-[4].
[103] For the Respondent’s contention, see Respondent’s Final Submissions dated 28 July 2017, [4].
This claim cannot, and will not, be entertained here. The Applicant cannot use the Tribunal to try and test which different claims might be successful before the Respondent. She also cannot use Tribunal processes to avoid the processes required by statute for the consideration and lodging of a claim.
For the same reasons as why her claim for PTSD cannot be entertained here, so too must her claim for Major Depressive Disorder. Simply, the Tribunal’s jurisdiction only arises in specific circumstances provided for in the relevant statutes. To ask me to consider claims that have not been through the proper processes is to ask me to make a jurisdictional error. I will not do that.
It is worthwhile noting, however, that my inability to make such a finding does not preclude the Applicant from lodging a fresh claim for this or another mental health condition. Indeed, were she to do so, it is entirely possible that she would be successful in her claim. However, for present purposes, I am restricted to examining the claims properly before me, so I cannot consider this matter any further.
HIGHER RATES OF PENSION
Under s 15 of the Act, a veteran who is in receipt of a pension may apply for an increase in the rate of their pension. I am satisfied that the Applicant has done so.
There are three routes through which the Applicant may claim a higher rate of pension:
(a)She could be entitled to a pension at a higher proportion of the General Rate;
(b)She could be entitled to the pension at the Special Rate; or
(c)She could be entitled to the pension at the Intermediate Rate.
I will consider each of these routes in turn.
Is the Applicant entitled to the pension at a higher proportion of the General Rate?
As things stand, the Applicant is in receipt of the pension at 80% of the General Rate.[104] The question presently before me is whether she is entitled to the pension at a higher proportion of the General Rate. Under s 21A of the Act, a veteran’s degree of incapacity is determined in increments of 10% with reference to the Guide to the Assessment of Rates of Veteran’s Pensions (“the Guide”).
[104] Exhibit 12, T-Documents, B 2.
Having reference to the Guide, and to the totality of the evidence before me, I am reasonably satisfied that the Respondent’s delegate’s decision that the Applicant is entitled to the pension at 80% of the General Rate is correct. In particular, I am satisfied that the totality of the Applicant’s impairments should be converted into an impairment rating of 45 points, and that the lifestyle effects of her impairments give rise to an overall lifestyle rating of 4. Applying the “Conversion to degree of incapacity” table in Chapter 23 of the guide,[105] I am satisfied that this gives rise to a total impairment rating of 80%. As the Applicant is younger than 65 years of age, she is not entitled to the extreme disablement adjustment.[106]
[105] See the Guide, p 278.
[106] See the Act, s 22(4).
Consequently, as a minimum, the Applicant is entitled to the pension at 80% of the General Rate. I will now turn to determining whether she is entitled to receive the pension at either the Special or the Intermediate Rate.
Entitlement to the pension at the Special Rate or the Intermediate Rate
Eligibility for the pension at either the Special Rate or the Intermediate Rate is determined according to ss 23 and 24 of the Act. I will deal with the Applicant’s eligibility for the pension at the Special Rate first, as she will only be eligible for the pension at the Intermediate Rate if she is not eligible for the pension at the Special Rate.[107]
[107] See the Act, ss 23(1)(d); 23(3A)(h).
The Special Rate pension
The first three hurdles the Applicant must overcome are that she must have lodged a claim for a pension or the increase in the rate of a pension, must have not yet turned 65 when the claim or application was made and she must have a degree of incapacity of at least 70% of the General Rate.[108] The Applicant has clearly met each of these criteria. The next two criteria are rather more difficult. The Applicant must:
(a)have a level of incapacity from her accepted conditions that is of such a nature as, of itself alone, to render her incapable of undertaking remunerative work for more than eight hours per week;[109] and
(b)by reason of her abovementioned incapacity, alone, be prevented from continuing to undertake remunerative work that she was undertaking and be, by reason thereof, suffering a loss of salary or wages or earnings that she would not be suffering were she free from that incapacity.[110]
[108] See the Act, ss 23(1)(aa)-(a).
[109] The Act, s 24(1)(b).
[110] Ibid, s 24(1)(c).
The Applicant contends that she is unable to work for more than 8 hours per week due to her accepted conditions, and that she is unable to gain employment or work.[111] I do not accept this contention.
[111] Applicant’s Final Submissions received 15 August 2017, [6].
Simply, I am not convinced that it is the combined effect of the Applicant’s accepted injuries – alone – that has prevented her from undertaking or continuing to undertake remunerative work. Rather, as canvassed extensively above, she has ongoing issues with her cervical spine, as well as some form of mental health disorder – likely Adjustment Disorder, although the Respondent contends that she also suffers from Major Depressive Disorder. Further, the Applicant has been limited in the range of work she is capable of undertaking due to a workplace injury she suffered while working at Cairns Hospital.[112]
[112] Exhibit 3, Enclosure 9.
In a report dated 13 August 2014, Dr Gundabawady stated that the Applicant “should be able to work up to 20hrs a week”, and that although the Applicant’s physical injuries are a primary and significant cause of her being unable to undertake work of the kind in which she was previously employed, her mental health conditions will also have an impact on that.[113]
[113] Exhibit 12, T-Documents, pp 243-244.
Additionally, I note that in her final submissions, it was stated that the Applicant “wishes to help herself by offering her voluntary services to Organisations like the RSL.”[114] While certainly admirable, this is not concordant with the idea that the Applicant is rendered unable to work by her accepted conditions.
[114] Applicant’s Final Submissions received 15 August 2017, [11].
Consequently, I find that the Applicant is not prevented by her accepted injuries, alone, from undertaking remunerative employment. Rather, her other physical and mental health conditions play a role in preventing the Applicant from engaging in remunerative work. She therefore does not pass the ‘alone test’ for the purposes of the Special Rate pension.
The Intermediate Rate Pension
Like the pension at the Special Rate, the Intermediate Rate pension has a version of the ‘alone test’. However, the threshold for remunerative employment in s 23 is rather lower: rather than being prevented from working for more than 8 hours per week, a veteran must be prevented from working “otherwise than on a part-time basis or intermittently” by their accepted conditions, alone.[115]
[115] See the Act, ss 23(1)(b).
Having reference to the evidence before me, including the evidence given at the hearing, I am not satisfied that the Applicant is prevented from working other than on a part-time or intermittent basis due to her accepted conditions alone. I reiterate the finding I made regarding the Special Rate of pension: the Applicant has several non-accepted conditions which have a significant impact on her ability to function. Even accepting the significant impact the Applicant says her accepted hip conditions have on her, it is not possible on the evidence before me to split hairs and say that her accepted conditions, alone, prevent her from working on a part time or intermittent basis.
Consequently, the Applicant is ineligible for the pension at the Special Rate.
The ameliorating provisions
Sections 23(3) and 24(2) of the Act provide an alternate route through which an applicant may be found to be eligible for the pension at the Special or Intermediate Rate. Colloquially referred to as the ‘ameliorating provisions’, the effect of these provisions is that the Tribunal will be satisfied that the requirements of ss 23(1)(c) and 24(1)(c), respectively, if the veteran demonstrates “genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work” (emphasis in the original).[116]
[116] Smith v Repatriation Commission (2014) 220 FCR 452 per Buchanan J at [49], cited in Brownlie and Repatriation Commission [2017] AATA 2292.
I am not satisfied that the Applicant has made sufficiently genuine efforts to fall within the bounds of these provisions. In particular, I find the statement in her final submissions that the Applicant wants to “get on with what is left of life with less pressure. She wishes to help herself by offering her voluntary services to Organisations like the RSL”[117] anathema to the idea that she meets the requirements of the ameliorating provisions. Rather, that statement implies that the Applicant is seeking a higher level of the pension not because she is incapable of work, but rather to take the pressure off and to allow her more time to spend volunteering.
[117] Applicant’s Final Submissions received 15 August 2017, [11].
While it is admirable that the Applicant should seek to give her time as a volunteer, such an assertion does not help her case. If she is capable of volunteering, the Applicant ought to be capable of remunerative employment. Just because she would rather volunteer does not mean she should be entitled to a higher rate of pension, or that she meets the requirement for said higher rate. Thus, this statement undermines the assertion that the Applicant is genuinely seeking remunerative work. Alternatively, it implies that it is a dearth of appropriate paid employment opportunities, rather than the Applicant’s physical conditions, which is the predominant cause of her lack of work.
In either circumstance – either the Applicant is not genuinely seeking remunerative employment or the local job market conditions are preventing her from attaining a paid position – the Applicant is unable to satisfy the ameliorating provisions because she is either not genuinely seeking paid employment, or her incapacity is not the substantial cause of her inability to work. If I were to also consider the effects of her mental health and cervical spine conditions, it becomes evident that the Applicant’s accepted incapacities are certainly not the substantial cause of her inability to find remunerative employment. Consequently, and in light of the scant evidence to the contrary, I am not reasonably satisfied that the ameliorating provisions should apply to the Applicant.
Conclusion: higher rates of pension
Having regard to all of the above, I find that the appropriate rate of payment for the Applicant’s pension is 80% of the General Rate. She is eligible for neither the pension at the Special Rate nor the Intermediate Rate. The ameliorating provisions also do not apply to the Applicant.
CONCLUSION
In consideration of the above, I make the following findings:
(a)The Applicant’s Adjustment Disorder is not related to her service;
(b)The Tribunal lacks jurisdiction to hear the Applicant’s claim regarding PTSD;
(c)The Tribunal lacks jurisdiction to hear the Applicant’s claim regarding Major Depressive Disorder;
(d)The appropriate proportion of payment for the Applicant’s pension is 80% of the General Rate;
(e)The Applicant should not be paid the pension at the Special Rate;
(f)The Applicant should not be paid the pension at the Intermediate Rate; and
(g)The ameliorating provisions do not apply to the Applicant.
On the basis of the above, I affirm the decision under review.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
................[sgd]........................................................
Associate
Dated: 12 April 2018
Dates of hearing: 10-11 July 2017 Date final submissions received: 15 August 2017 Advocate for the Applicant: David Chalk Solicitors for the Applicant: Edmonton RSL Pensions & Welfare Advocate for the Respondent: Ken Rudge
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