Phillips and Commissioner for Superannuation - [2003] AATA 11

DECISION AND REASONS FOR DECISION [2003] AATA 11

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No Q94/552,Q2000/319
GENERAL ADMINISTRATIVE DIVISION          )
           Re      GAIL ROSLYNNE PHILLIPS
  Applicant
           And    COMMISSIONER FOR SUPERANNUATION

Respondent

DECISION

Tribunal Deputy President Don Muller Mr R G Kenny, Member Mr B J McCabe, Member

Date8 January 2003
PlaceBrisbane

Decision The Tribunal varies the decision under review and determines that: (i) the applicant failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983; (ii) if she had not failed to give that information or had not given that false or misleading information then the Benefit Classification Certificate issued in respect of her would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis; (iii) that a substitute Benefit Classification Certificate specifying personality disorder and major depressive disorder be issued effective from 4 January 1984; and (iv) the incapacity which was the ground for the applicant's retirement, namely, obsessive compulsive disorder, was caused, or was substantially contributed to by the condition or conditions specified in the Benefit Classification Certificate, or was connected with either or both of such condition/s.

.............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
SUPERANNUATION – benefit classification certificate – false or misleading information – real risk of not continuing to retirement age – specification of condition – whether retirement caused or substantially contributed to by condition

Superannuation Act 1976 (Commonwealth) s16(4), 16AC, 66(2)

Black v. Commissioner for Superannuation (No N 93/161 AAT No 9392)
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Commissionar for Superannuation v Benham (1989) 22 FCR 413
Commissioner for Superannuation v Miller (1986) 8 FCR 153
Commissionerfor Superannuation v Perrett (1990) 23 FCR425
Fry v Commissioner for Superannuation (1984) 2 FCR 472
Hocroft and the Commissioner for Superannuation 23 ALD 369 at 373
Kelly and the Commissioner for Superannuation (No A87/79 of 6 May 1988
Linden and the Commissioner for Superannuation (1979) 2 ALN 659
McLean v. Commissioner for Superannuation (1991) No. A92/13 AAT No. 9123
McMullen v Commisioner for Superannuation (1985) 61 ALR 189
Meilak v Commissioner for Superannuation (1991) 28 FCR 315
Perret v Commissionar for Superannuation (1991) 29 FCR 581
Re Bergin and Commissioner for Superannuation (1991) 19 ALD 279
Re: Rohde & Commissioner for Superannuation (1988) 18 ALD 79
Sheridan v the Commissioner for Superannuation (1993) 31 ALD 759

REASONS FOR DECISION

8 January 2003 Deputy President Don Muller Mr R G Kenny, Member Mr B J McCabe, Member

The Application

Gail Phillips (the applicant) was born on 2 December 1949 and was appointed to the Australian Public Service on 14 February 1983 at which time she became an eligible employee within the meaning of the Superannuation Act 1976 (the 1976 Act). She was examined on 14 July 1983 by a Commonwealth Medical Officer (CMO) to determine her fitness for appointment and superannuation classification for the purposes of the Act. On 4 January…

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.

Continue reading Phillips and Commissioner for Superannuation

Details

AGLC: Phillips and Commissioner for Superannuation [2003] AATA 11
Case: [2003] AATA 11
Decision Date: 8 January 2003

CaseChat Overview and Summary

In the matter of Phillips and the Commissioner for Superannuation, the primary focus was on whether the applicant, who retired due to obsessive compulsive disorder (OCD), provided accurate information during her medical examination in 1983. The case was heard and decided by the Tribunal under the provisions of the Superannuation Act 1976 (Commonwealth). The applicant contested the Commissioner's decision that she had failed to provide accurate information during her medical examination in 1983, which led to her retirement on the grounds of incapacity in 1988. The central legal issues were whether the applicant had provided false or misleading information during her medical examination, and if so, whether her retirement was substantially contributed to by conditions that would have been specified in a substitute Benefit Classification Certificate (BCC).

The Tribunal found that the applicant had not disclosed significant psychiatric history during her medical examination in 1983, specifically, a history of personality disorder and major depressive disorder. The Tribunal concluded that these conditions would have been specified in a substitute BCC had the applicant provided accurate information. Additionally, the Tribunal determined that the applicant's incapacity from OCD, which led to her retirement in 1988, was substantially contributed to by the personality disorder and/or major depressive disorder. The Tribunal ruled that the incapacity was either caused by or substantially contributed to by the conditions specified in the BCC or was connected with those conditions.

The Tribunal varied the decision under review by determining that the applicant failed to provide the required information or gave false or misleading information during her medical examination in 1983. It was concluded that if the applicant had provided accurate information, the BCC would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis. Consequently, the Tribunal ordered that a substitution BCC specifying personality disorder and major depressive disorder be issued effective from 4 January 1984. This decision meant that the applicant's retirement due to OCD was indeed substantially contributed to by the specified conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant recalled the medical examination in 1983 and the questionnaire she completed at that time. She said that it had not entered her head to answer "yes" to any of the parts of question 1 as she believed that she had not suffered from the conditions nominated on the questionnaire. She had been "worn out" in the past and thought that the conditions related to persons "who get worked up and nervous" and that depression meant that a person "could not face the day" or "lost interest in life". She said that none of these descriptions applied to her and that, if she used the term "depression", it would have been in a colloquial sense. She said that she had never been fatigued but had felt weak from dieting. She said that she had been sad and distressed when she learned of Don's death but that she had still managed to do things. She had difficulty in sleeping on one or two nights but did not have a sleeping problem. In relation to "complaints, illness or injury", she believed that these were references to matters such as stomach problems but not psychiatric matters. The only condition that she believed she had was allergic rhinitis. 18. The applicant said that she began to have symptoms of obsessive compulsive disorder in late 1983. Her sleep was broken and she was involved in completing various rituals. Her symptoms increased and, during 1986, she would take up to 20 minutes to negotiate entry through her front gate and was unable to go upstairs into her house for long periods, sometimes spending the entire night in her car. She commenced a period of continuous sick leave in January 1987. In February 1987, she was referred to the psychiatrist, Dr O'Brien, by her general practitioner, Dr A Bignell. She was referred to the letter by Dr Bignell (exhibit 8) where it is stated that the applicant had had "a nervous breakdown in the past". She said that she was not sure if she had used those words when speaking with Dr. Bignell. Evidence ofJennifer Jensen19. Ms Jensen was the librarian at Annerley when the applicant worked there in 1977-78. She described the applicant as a very competent library assistant who related well to children and adults. She said that she also functioned well socially but that she began to develop some difficulties with some of the younger librarians, in particular with one such staff member. She could recall that the applicant had taken a period of sick leave but she was unable to recall details of her punctuality or of personal matters concerning the applicant.Evidence of Dr F Varghese20. Dr Varghese is a consultant psychiatrist who saw the applicant on 22 November 2001 and who prepared a report dated 16 January 2002 (exhibit 5). Dr Varghese reported that the applicant was a most difficult person to interview as she was very keen to play down any psychiatric disorder prior to her joining the APS despite it being quite obvious that there was a significant past history. He had referred the applicant to her consultations with Dr Weekes and Mr Dent but she had denied that she had any mental health problems. Dr Varghese expressed the opinion that there was a significant past psychiatric history when she was treated by Dr Weekes and by Mr Dent and that it was best understood as a recurrent major depression. He also said that it was likely that there had been subsequent depressive episodes and that it was possible that, at the time she was consulting Dr Weekes, the depressive episode was of a severe kind.

Decision

Reasons for decision

The Tribunal is satisfied, in accordance with sub-section 66(2) of the 1976 Act, the applicant's incapacity from OCD which brought about her retirement in 1988 was substantially contributed to by personality disorder and/or major depressive disorder, conditions which would have been specified in a substitute BCC. Decision The Tribunal varies the decision under review and determines that:(i)the applicant failed to give information that she was required to give or gave false or misleading information in connection with the medical questionnaire completed on 14 July 1983;(ii)if she had not failed to give that information or had not given that false or misleading information then the Benefit Classification Certificate issued in respect of her would have specified the additional conditions of personality disorder and major depressive disorder in addition to allergic rhinitis;(iii)that a substitution Benefit Classification Certificate specifying personality disorder and major depressive disorder be issued effective from 4 January 1984; and(iv)the incapacity which was the ground for the applicant's retirement, namely, obsessive compulsive disorder, was caused or was substantially contributed to by the condition or conditions specified in the Benefit Classification Certificate or was connected with either or both of such condition/s.

Ratio Decidendi

Legal Principle Established

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