Sutherland, John Miller v Repatriation Commission
[1996] FCA 91
•27 FEBRUARY 1996
CATCHWORDS
Defence And War - Defence Forces - Ex-Servicemen (Veterans) - Pensions, allowances and other benefits - Review - By Administrative Appeals Tribunal - Claim for "arthritis" - Claim particularised as arthritis of hips and knees - On review of a decision of the Repatriation Commission affirmed by the Veterans' Review Board a contention was first raised that arthritis of spine was war-caused - Administrative Appeals Tribunal not authorised to entertain such a contention.
Veterans' Entitlements Act 1986
Repatriation Commission v. Stafford (F.C. unreported; VG 129 of 1995; judgment 28 July 1995)
Owen v. Repatriation Commission (1985) 38 A.L.D. 241
JOHN MILLER SUTHERLAND v. REPATRIATION COMMISSION
VG512 of 1993
Jenkinson J.
Melbourne
27 February, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG512 of 1993
GENERAL DIVISION )
On Appeal from the Veteran's Appeals Division of the Administrative Appeals Tribunal constituted by Commodore B. G. Gibbs, AM, RAN (Retd).
BETWEEN:JOHN MILLER SUTHERLAND
Applicant
AND: REPATRIATION COMMISSION
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 27 February, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The cross-appeal be allowed.
The decision of the Administrative Appeals Tribunal in so far as it concerns the date as from which payment shall be made of the pension assessed at ninety per centum of the general rate of pension be set aside.
The case in so far as it concerns the fixing of such a date be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG512 of 1993
GENERAL DIVISION )
On Appeal from the Veteran's Appeals Division of the Administrative Appeals Tribunal constituted by Commodore B. G. Gibbs, AM, RAN (Retd).
BETWEEN:JOHN MILLER SUTHERLAND
Applicant
AND:REPATRIATION COMMISSION
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 27 February, 1996
REASONS FOR JUDGMENT
Appeal and cross-appeal from a decision of the Administrative Appeals Tribunal in respect of the applicant's entitlement to pension under the Veterans' Entitlements Act 1986.
The applicant was born on 15 February 1927. He served as a member of the Defence Force during World War 2 and his service was to be taken to be operational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act"). When the proceeding for review commenced, upon which the Tribunal's decision was made, a disease described in the determination of the respondent's delegate as "peripheral vascular disease" had been determined to have been war-caused, as being of a description found in s.9 of the Act. So, too, had a disease called "sensori neural hearing loss". The respondent's delegate and, on review, the Veterans' Review Board had rejected the applicant's claim that "osteoarthritis hips and knees", a disease which the applicant was suffering, was war-caused. But when the hearing of the review commenced the parties' representatives declared what the Tribunal in its reasons for decision characterised as a concession by the respondent that the osteoarthritis of the applicant's hips and knees was war-caused. The parties were then in apparent agreement that the Tribunal's function would be to determine whether the rate at which the pension payable to the applicant under Part II of the Act was to be assessed at 90 per centum of the general rate pension, as the respondent's representative submitted, or at the special rate, as the applicant's solicitor, Mr. Reichman, contended. In written statements placed before the Tribunal the parties' representatives had both stated that in making its determination the Tribunal should, pursuant to s.120(4) of the Act, decide the matter to its reasonable satisfaction, that is, on the civil standard of proof. And that is what the Tribunal did. The Tribunal, applying that standard, determined that the rate was 90 per centum of the general rate of pension, an increase from the 50 per centum determined by the respondent's delegate and affirmed by the Board. The decision was made in November 1993.
In August 1990, after the respondent's delegate had rejected the applicant's claim that his osteoarthritis of hips and knees was war-caused, John Howard Eckersley, a medical practitioner who had been treating the applicant in the course of the doctor's general practice, sent the respondent a letter, which reads:
"My patient, Mr John M Sutherland (VX 188755), is covered fully by your department for essential hypertension and peripheral vascular disease (presumably because of war time issuing of cigarette and the known relationship between cigarettes and peripheral vascular disease).
He now finds himself with degenerative disease of the joints. The Xrays of these joints show spectacularly calcified major vessels including the vessels which are the source of vascular perfusion to the joints in question.
My case for this man's claim for osteoarthritis being war related and as such a Veteran Affairs Department responsibility, is based on the known relationship between tissue health and the quality of vascular perfusion. To suggest that there is no evidence or relationship to implicate the vascular disease as one of the causal factors is a bold assumption. I suggest that in a man with no family history of early degenerative osteoarthritis and no episodes of major trauma to the same joints, we have to have a reason additional to his genetic make up.
Quite clearly from the Xrays and the Veteran Affairs agreed acceptance of responsibility for the peripheral vascular disease, there has to be a possible or probable relationship between the major joint osteoarthritis and the visibly abnormal vasculature supplying these joints and I would expect other joints to deteriorate as time proceeds secondary to arteriosclerosis caused by smoking, and war service additional to age."
The letter, dated 17 August 1990, was sent in support of the applicant's application, pursuant to s.135(1) of the Act, for review of the decision in respect of his claim. Shortly after the Veterans' Review Board confirmed the decision of the respondent's delegate a letter dated 4 February 1992 was sent to the respondent by Dr. Nicholas Christophidis, a rheumatologist. It was in these terms:
"I examined Mr. Sutherland on the 29th January, 1992, having been referred to me by his local doctor. He is a 65 year old man who suffers from peripheral vascular disease and osteoarthritis of the right hip joint. The right hip joint was treated initially with anti-inflammatory analgesics and eventually about 2 years ago by total hip joint replacement.
Mr. Sutherland is appealing against a recent decision against relating his osteoarthritis to his war service.
In my opinion, there is a possible relationship between war service and osteoarthritis through the following mechanisms.
Firstly, there is a theory that osteoarthritis may be secondary to poor vascular supply of joints leading to a form of bone claudication and secondary sclerosis. The sclerosis then leads to under supply of nutrients to cartilage, resulting in cartilage degeneration, the hall mark of osteoarthritis.
Mr. Sutherland's vascular disease would certainly contribute to that. Another possible mechanism is through a vascular necrosis which could be related again to his vascular disease or possibly to alcoholism and Mr. Sutherland does admit to excessive alcohol intake following his war service, a not an uncommon scenario. The exact mechanism by which alcoholism can cause a vascular necrosis is not clear, but certainly a vascular necrosis can lead to osteoarthritis.
The third possible mechanism is obesity. Mr. Sutherland did take up smoking during the war and for some years after it and when he gave this up he became overweight and this is a risk factor for osteoarthritis.
I think through these mechanisms there is a plausible link between Mr. Sutherland's war service and the development of osteoarthritis of his right hip joint, which eventually resulted to total hip joint replacement some 2 years ago.
I thus support his application for this to be recognised by the Department of Veterans' Affairs."
By letter dated 17 March 1993 a short letter from Dr. Christophidis to the respondent was sent. It reads:
"Further to our telephone conversation I confirm that I have nothing really further to add to my original report with respect to the relationship of Mr Sutherland's osteoarthritis and his War Service. However, I would add that my comments in relation to his hip joint would also apply to his knees."
In April 1993 the applicant's solicitor obtained and furnished to the respondent a letter from Professor Peter Gosch of the University of Sydney, who was at that time Director of the Raymond Purves Bone & Joint Research Laboratories at The Royal North Shore Hospital. The letter reads:
"Further to our telephone conversation of today, I am writing to confirm my statement that there is documented scientific evidence to support a strong association between peripheral vascular disorders and osteoarthritis of the hip.
Numerous publications showing impaired blood flow in subchondral bone of joints of patients with osteoarthritis have appeared since the 1960's (eg. Hulth, Acta Orthop. Scand. 28: 81-89, 1959; Brooks and Helai, J Bone Joint Surg 50B: 493-504, 1968).
It is considered by some that this intraosseous hypertension in joints is not secondary to osteoarthritis but is actually its cause (Arnoldi, Lemperg and Linderholm, J Bone Joint Surg 58B: 360-363, 1975).
More recently studies in my laboratories and at the Greenslopes Repatriation Hospital, Brisbane, have documented abnormalities in blood clotting and lipid parameters in Veterans with osteoarthritis of the hip who are awaiting total joint replacement.
The circularity abnormality(ies) in these patients leads to poor nutrition to the cells in their subchondral bone causing cell death and bone re-modelling. The resulting failure of the bone to support the overlying cartilage exacerbates its deterioration, thereby contributing to joint failure and osteoarthritis.
I trust this information is adequate for your needs."
It was after receiving and considering Professor Gosch's letter and taking further medical opinion that the respondent conceded that the applicant's osteoarthritis of hips and knees was war-caused. The claim that there was such a relationship would be determined in accordance with the requirements of sub-sections 120(1) and 120(3) of the Act. The concession having been made, only Dr. Eckersley gave viva voce medical evidence before the Tribunal. His evidence, given by telephone, attributed to "severe osteoarthritis of the lower thoracic spine and of the whole length of the lumbar spine .... with probable sub-clinical but multiple level spinal canal stenosis" a major role in bringing about what in his opinion was the applicant's total and permanent incapacity for work. A medical report by Dr. Eckersley immediately before the hearing commenced reads:
"Re John M. Sutherland
With multiple joint osteoarthritis and widespread marked calcific arteriosclerosis. He retired from work following a prolonged unsatisfactory recovery postRhip arthroplasty.
The protracted recovery was directly related to problems of
(1)Claudication of both legs
(2)Other joint arthritis of the knees, L hip and spine
These are chronic ongoing problems as illustrated by the fall in June 1992 causing a L fractured neck of femur.
This was the second fall in a short period caused by mobility difficulty due to arthritis, hypertension and the effects of altered cerebral circulation due to hypertension treatment and arteriosclerosis."
The oral evidence of the applicant to the Tribunal, as well as answers he gave to medical practitioners who examined him and whose reports were in evidence before the Tribunal, referred to back pain.
The concluding paragraphs of the Tribunal's reasons for decision are:
"33. When asked whether he thought that during the period he has been under his care Mr. Sutherland would have been in a position to work, Dr. Eckersley said that he thought the presence of pain would have prevented him from maintaining any one posture for any period to time. He did not think that Mr. Sutherland would have been able to do a full-day's work and that for him to work he would need special furniture with breaks from sitting down about every half hour or so. It was his view that but for his spinal condition Mr. Sutherland would be far more able to work.
34. It was submitted by Mr. Reichman that Mr. Sutherland's vascular disease affects all of his joints, including his back, and that it is in this context that the evidence of Dr. Eckersley concerning the spine, including spinal canal stenosis, should be received.35. I note that a consultant rheumatologist, Dr. Christophidis, states in a report dated 4 February 1992 (Exhibit A1) that there is a theory that osteoarthritis may be secondary to poor vascular supply of joints leading to a form of bone claudication and secondary sclerosis, the latter then leading to an under supply of nutrients to cartilage which then results in cartilage degeneration, being the hallmark of osteoarthritis. While the same theory appears to also be advanced by Dr. Eckersley in a letter to the Department of Veterans' Affairs on 17 August 1990 (T14 folio 52), it is, however, specifically rejected by Dr. King (Exhibit R1).
36. From the material before me, in particular the evidence of Dr. Eckersley and Dr. King, I find that Mr. Sutherland does not meet all of the qualifications set out in sub-section 24(1) of the Act in that, firstly, his incapacity from war-caused diseases is not of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week and, secondly, he is not, by reason of incapacity from his war-caused diseases, alone, prevented from continuing to undertake remunerative work that he was undertaking. In making this finding I have, on the balance of probabilities, rejected the theory propounded by Dr. Christophidis and Dr. Eckersley as discussed in paragraph 34 above. I have, however, accepted the evidence of Dr. Eckersley that the condition of Mr. Sutherland's spine, which is a condition that is not war-caused, played a part in his retirement in April 1990 and his subsequent decision not to seek other employment."
It was a ground of appeal that the Tribunal erred in law in deciding the issue whether the applicant's spinal condition was war-caused. I uphold that ground, but not for the reasons advanced in support of that ground. The reasoning
of a Full Court of this court in Repatriation Commission v. Stafford (VG129 of 1995; unreported; judgment 28 July 1995) - in particular paragraphs 1-7 and 12-13 of the court's reasons for judgment - establishes that the expression "the decision of the Commission that was so affirmed" in s.175(1)(b) of the Act comprehends only the decisions of the Commission which the Veteran's Review Board was required to review in order to reach its conclusion that the ultimate decision of the Commission should be affirmed. In this case there were three ultimate decisions of the Commission to be reviewed by the Board. One was the determination of a delegate of the Commission "that osteoarthritis hips and knees is not war-caused". The second was the delegate's contemporaneous determination that the applicant's "peripheral vascular disease" was war-caused. The third was his contemporaneous determination that the applicant's claim for pension under Part II of the Act in respect of peripheral vascular disease be granted and be payable at the rate of 50 per cent of the general rate. There was before the delegate no claim for a pension in respect of any disease of, or injury to, the applicant's spine. When the ultimate decisions of the Commission were reviewed by the Veterans' Review Board no claim had been made that the applicant had contracted a disease of, or suffered an injury to, his spine that was war-caused. Nor was there any evidence before the Board, so far as appears from the material before the court, that the condition of the applicant's spine was contributing to his incapacity. There is, further, no reference to the applicant's spine in the Board's reasons for its decision. The Board had exercised the power conferred on it by s.152 of the Act to procure medical opinion about the reasonableness of the opinion expressed in Dr. Eckersley's letter dated 17 August 1990, but the written medical report in response to the Board's request under s.152, like Dr. Eckersley's letter, contains no reference to the applicant's spine. All the references to the spine and to back pain in the material before the Tribunal which the material before this court discloses came into existence after the decision of the Board in January 1992. In those circumstances the Tribunal was in my opinion not authorised to consider either the question as to whether the applicant had suffered an injury to, or contracted a disease of, his spine (except in the course, and for the purpose, of determining the rate of pension in accordance with Division 4 of Part II of the Act) or the question whether any such an injury or disease was war-caused, as being causally related to his peripheral vascular disease. That conclusion is required, in my opinion, by the reasoning of the Full Court in Stafford's Case, supra. Had a claim for pension been made under s.14 of the Act in respect of incapacity caused by disease of the spine, both questions would have been determinable in accordance with the provisions of sub-sections 120(1) and 120(3) of the Act : see Preston v. Repatriation Commission (1993) 45 F.C.R. 214; Nation v. Repatriation Commission (1993) 18 A.A.R. 273. But it follows from the conclusion I have stated that the Tribunal was required in assessing the appropriate rate of pension to treat incapacity deriving from the condition of the applicant's spine as not from war-caused injury or war-caused disease. The errors of law I have identified did not therefore render erroneous the Tribunal's assessment of the rate of pension.
Counsel for the applicant placed reliance on the content of the claim made by the applicant, in writing and in accordance with a form approved by the Commission. (See sub-sections 14(1) and 14(3) of the Act.) In the space provided on the form for statement of the "disabilities" (a word apparently intended by the draftsman of the form to comprehend injury and disease) claimed, but not already accepted, as war-caused, the applicant wrote "arthritis". In the space provided for statement of symptoms of the disability he wrote "pain in hip and knee". In the space provided for statement of names and addresses of doctors by whom, and hospitals in which, treatment had been provided for the disability the applicant identitied two doctors, one of whom was the surgeon who in December 1989 had carried out surgical replacement of the applicant's right hip, as the applicant disclosed elsewhere on the form. Counsel for the applicant submitted that the expression of the claim as one in respect of "arthritis" constituted the claim as one in respect of inflammation of any and all of the joints of the applicant's skeleton. Both in common parlance and in medical usage the word "arthritis" means inflammation of the joints, it was submitted. Curiously, Butterworths Medical Dictionary (2nd edition), which counsel handed me, and the Macquarie Dictionary give "inflammation of a joint". But the Oxford English Dictionary (2nd ed) gives "inflammation of the joints", a definition which for the purposes of this appeal I will prefer. Since neither the applicant nor any agent of his had ever withdrawn or limited the claim as so expressed, the decision of the respondent's delegate and the decision of the Veterans' Review Board, although expressed as a rejection of a claim that "osteoarthritis hips and knees" was war-caused, must be taken in law as a rejection of a claim that arthritis of any of the applicant's joints was war-caused, according to the submission.
In Owen v. Repatriation Commission (1995) 38 A.L.D. 241 at 248 Finn J. observed:
"The provisions of the Act s.175(1)(a) and the Administrative Appeals Tribunal Act 1975 (Cth) ss. 25(4) and 43(1) all contemplate the tribunal's power of review being limited to a review of the decision in respect of which application is able to be made to it : see also Secretary, Department of Social Security v. Riley (1987) 17 FCR 99; 13 ALD 608; Stafford v. Repatriation Commission (1995) 36 ALD 78; 21 AAR 97. For the purposes of this appeal I am prepared to hold that the power of review is so limited without expressing a view as to whether this is so for all purposes and in all circumstances. Central to the present appeal is thus the issue : what is the `decision' in respect of which application for review to the tribunal was made?
The answer to this in my view can be simply put. That decision is the response which in conformity with the Act, needs to be given to the question raised for the commission by the applicant in his claim for a pension. It doubtless is the case that claims can be made in terms which, because of their vagueness, generality or ambiguity, leave it to the commission to ascertain as best it can the nature of the claim being made. such is not the case here. While the Act does not in terms require an applicant to provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases (see, eg the Act s.14(5)) and the claim form itself is constructed so as to lead towards particularisation."
The generality of the word "arthritis" was in my opinion limited in its reference in the claim form to the particular joints specified in the space provided for statement of symptoms. In common parlance the word is not used to signify inflammation of all the skeletal joints of a person. In that parlance - there being no evidence to suggest that the applicant had more than a layman's knowledge of medicine - use of the word excites an expectation that one or more particular joints are sites of the inflammation signified by that use. And the statement of symptoms validated that expectation. In my opinion the written claim was limited to the indicated joints.
Although there may be no legal significance in the circumstances I next mention, I record that the applicant gave evidence before the Veterans' Review Board and was represented at the hearing by an advocate.
There were grounds of appeal that the Tribunal had either failed to consider the question whether the provisions of paragraph 24(2)(b) of the Act had been satisfied or had, in considering that question, erred in its construction of those provisions. Section 24 applies to a veteran only if the conditions of each of paragraphs 24(1)(a), 24(1)(b)and 24(1)(c) are satisfied. Paragraph 24(2)(b) has an operation limited to paragraph 24(1)(c). The Tribunal found that the condition of paragraph 24(1)(b) had not been satisfied. Therefore any error in respect of paragraph 24(2)(b) would not affect the Tribunal's conclusion that s.24 did not apply to the applicant. I express no opinion about those grounds, numbered (5) and (6).
The respondent had submitted to the Tribunal that it should find that service on the applicant of a document setting out the terms of the Veteran's Review Board's decision had occurred more than three months before the applicant's application for review by the Tribunal was made. If that finding were made, s.177(2)(b)(i) of the Act would authorise the Tribunal to approve payment of the pension at the increased rate which it had determined, in lieu of the rate determined by the respondent's delegate and affirmed by the Veterans' Review Board, from a date not more than six months before the date on which the application for review by the Tribunal was made. If on the other hand the Tribunal found that service of the document had occurred within 3 months before that application was made, s.177(2)(a) would authorise the Tribunal to approve payment at the increased rate from a date as from which the Veterans' Review Board could, if it had increased the rate of the pension, have approved payment at the increased rate. The decision of the Tribunal specified a date authorised by s.177(2)(a), but the reasons for the Tribunal's decision are silent about the question as to what the date should be and contain no finding as to the date of service of the document, or as to the date on which the applicant's application to the Tribunal was made. The latter date may reasonably have been considered by the Tribunal to be not the subject of controversy. But the evidence had not compelled a finding either way conclusive of the question whether the two dates fell within a period of three months and the Tribunal had been asked to make a finding about that question.
The cross-appellant Commission by its counsel submitted that either the Tribunal had failed to determine the question or had found that the two dates had not fallen within a period of 3 months, and that in either event the Tribunal had erred in law: failing to decide a question required by law to be answered in making the administrative decision as to the date as from which the increased pension should be payable or failing, in breach of s.43(2B) of the Administrative Appeals Tribunal Act 1975, to state its finding on a material question of fact.
I uphold the submission of the cross-appellant, which was but faintly contradicted by counsel for the cross-respondent. The decision as to the date as from which payment of the pension assessed at 90 per centum of the general rate shall be made will be set aside and the case in so far as it concerns the fixing of such a date will be remitted to the Tribunal to be heard and determined according to law.
I certify that this and the 15 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 27 February, 1996
Counsel for the Applicant : Mr. K.H. Bell
Counsel for the Respondent : Mr. P.J. Hanley
Solicitors for the Applicant : Reichman & Co.
Solicitors for the Respondent : Australian Government Solicitor
Dates of Hearing : 27 and 28 July, 1995 and 15 February, 1996
Date of Judgment : 27 February, 1996
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