Turner and Repatriation Commission (Veterans' entitlements)

[2019] AATA 2961

Turner and Repatriation Commission (Veterans' entitlements) [2019] AATA 2961 (29 August 2019)

Division:Veterans' Appeals Division

File Number:           2018/6924

Re:Paul Turner  

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Senior Member
Mr S Evans, Member

Date:  29 August 2019

Place:Sydney

The decision in respect of claim period two is set aside and, in substitution Mr Turner’s claims for travel expenses during 2013 from 2 April 2013 are accepted.

The decision with respect to claim period one is affirmed. 

.......................[SGD].................................................

Dr I Alexander, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – travelling expenses claims – where claims received after the statutory twelve month time limit – whether exceptional circumstances exist – applicant incapacitated during claim period – decision set aside and substituted

CASES

Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513
Ho v Professional Services Review Committee, No. 295 [2007] FCA 388 (26 March 2007).
Oreb v Willcock [2005] FCAFC 196; (2005) FCR 237
R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198

LEGISLATION

Veterans’ Entitlements Act1986(Cth) ss 110, 112

SECONDARY MATERIALS

Department of Veterans’ Affairs: Factsheet HSV02 – Claiming Travelling Expenses Under the Repatriation Transport Scheme

REASONS FOR DECISION

Dr I Alexander, Senior Member

Mr S Evans, Member

29 August 2019

1. On 2 July 2013 Mr Turner lodged a claim for Disability Pension with the Department of Veterans’ Affairs (DVA).

2. In a letter dated 3 October 2013 Mr Turner was informed that his claim for “posttraumatic stress disorder, hypertension, Diabetes Mellitus, chronic kidney disease, sensorineural hearing loss, tinnitus, anxiety disorder and alcohol abuse” was accepted. Disability Pension was granted at 80% of the General Rate with effect from 2 April 2013.

3. On 19 May 2017, Mr Turner lodged an online claim for travelling expenses[1] with respect to travel related to treatment covered under the Veterans’ Entitlements Act1986 (Cth) (VE Act) that occurred on a range of dates from 22 January 2016 to 30 June 2016 (claim period one).

   [1] Claim number - NSW2017-016026.

4. On 2 June 2017 this claim was accepted in part and payments were made to reimburse $18.10 in travel expenses for dates that post-dated 19 May 2016. 

5. Claimed travel expenses for travel prior to 19 May 2016 were not accepted.

6. On 21 May 2017, Mr Turner lodged another two online claims for travelling expenses[2] with respect from 16 January 2013 to 27 November 2013 (claim period two).

   [2] Claim Number – NSW2017-016116; NSW2017-016119.

7. On 2 June 2017 both claims were rejected and no payments were made on the basis that they related to dates more than 12 months prior to the date of claim, that is, 21 May 2016.

8. Mr Turner applied for review of these decisions and, on 16 August 2018 a delegate of the DVA affirmed the decisions dated 2 June 2017 with respect to the rejected travel claims NSW2017-016116, 016019[3] and 016026.

   [3] The relevant claim number was 016119. The Tribunal intends to proceed on the assumption that there has been a typographical error.

9. In these proceedings Mr Turner, who was self-represented, attended the hearing in person and now seeks review of the decision made by the delegate of the DVA.

   ISSUES

10. Section 110 Of the VE Act provides inter alia as follows:

    110 Travelling expenses

    1Where a veteran, or dependent of a deceased veteran, travels with the approval of the Commission for the purpose of:

    (a)obtaining treatment,

    (b)restoration of his or her health; or

    (c)being fitted with surgical aides or appliances or artificial replacements: 

    the veteran, or dependent, as the case may be, is, subject to this section and to such conditions as are prescribed, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed.

11. For present purposes, it is accepted that, pursuant to s 110 of the VE Act, Mr Turner was entitled to be paid his travelling expenses for the purpose of obtaining treatment for his accepted medical condition as of 2 April 2013.

12. However, s 112 of the VE Act provides, inter alia, as follows:

    Time for applying for certain benefits

    1An application for travelling expenses in connection with travel referred to in subsection 110(1), )1A) or (2) must be made within

    (a)12 months after the completion of that travel; or 

    (b)If the Commission thinks there are exceptional circumstances         that justify extending that period as the Commission allows. [emphasis added]       

13. As the majority of the travel in Mr Turner’s rejected claims for travelling expenses occurred more than 12 months after the completion of the travel, the definitive issue in this matter is whether there are exceptional circumstances which would justify the exercise of the discretion set out in s 112 of the VE Act.

    MR TURNER’S EVIDENCE

14. In an email dated 16 June 2017 Mr Turner stated, inter alia, the following;

    I was only told that I was entitled to claim for my travel costs to and from relevant medical appointments on 31^st November 2016 and it has taken me 6 months to find out all applicable information and then solid 4 days filling out DVA’s travel claim forms (it kept timing out).

    When I received my approval for DVA entitlements in 2012[4] I was sent a literature but I have checked it all and nowhere does it say I was entitled to travel expenses…

    [4] As noted above the decision to grant Disability Pension was dated 3 October 2013 with effect from 2 April 2013.

15. In a letter dated 20 November 2018 Mr Turner states, inter alia, the following:

    Prior to granting of 80% White Card I had been under the treatment by DVA recommended Psychiatrist, Dr Keshava…For at least 7 years I had been driven mad by voices in my head repeating the names Ben & Steve…It was only 7 after years after I first told Dr Keshava about…that after one visit to Dr Keshava I couldn’t sleep, then at 2:30 am suddenly there it was. It was related to an incident in Nui Dat, Vietnam….Just as suddenly the “Ben, Steve” names stopped hounding me.

    During that period, I was in no fit state to work or to do much else except drive back & forth to the Psychiatrist. Certainly not travel claims Sadly Dr Keshava retired soon after…my current psychiatrist Dr Patrick Morris…encouraged me to enter the series of PTSD Programs It was whilst doing one of these courses that several others encouraged me to make my back claims for when I was first granted a DVA Pension. I certainly was in no state to do such a thing during my Haunting [sic] and still find it difficult.

16. At the hearing Mr Turner stated that he was not informed and not aware that he could claim for traveling expenses until 2016 while attending a “PTSD course.” He indicated that he was able to retrospectively provide the relevant details of his past medical appointments and associated travel because he had maintained a record of his appointments on his “Apple Mac calendar and was able to calculate the distances by using Google”.  He also indicated that since 2016, although time consuming, he has been able to claim all his travel expenses.

17. Mr Turner confirmed that between 2013 and 2016 he could not focus on things because of “the voices in his head” and then one morning in 2016 they “just went away”.  He claimed that during this period he was seen on a regular basis by Dr Keshava, “up to 40 times”, but was only able to obtain copies of three letters written by Dr Keshava during 2013.

18. For reasons that are unclear, Mr Turner also stated that he was unable to obtain any other documents or medical records for the period between 2014 and 2016.

19. Mr Turner stated that his wife would usually drive him to his various medical appointments but conceded that, when necessary, he would drive himself, but would try and arrange appointments so that he could drive “during the day when the traffic wasn’t as bad”. He explained that he had purchased “one of the world’s safest cars” and preferred to travel in his own car because it was “comfortable for me, and that would do things that I could do.”

20. During cross examination Mr Turner stated that after having received his “white card” he was usually able to convince the various medical practitioners to provide services under the DVA arrangements. However, infrequently, he was required to submit a separate claim which he found difficult because he “had to write a letter”.

21. Mr Turner claimed that he was never informed or had seen anything about travelling expenses prior to 2016. When asked whether, had he been aware that he could claim for travelling expenses he would have submitted any claims, he said “I wondered …they were small amounts…. I wasn’t thinking clearly”.

22. In response to a question from the Tribunal, Mr Turner said that, in addition to the claims being considered in the current review, he had submitted several claims for travelling expenses for 2014 to 2015 and does not know why these have not been reviewed.

23. At the hearing the advocate for the Respondent stated that “There may well have been a review of them at the intermediary level, I suspect not, I can’t rule that out.  But they were not appealed to the Tribunal.”

24. In response to a submission by the Respondent that, because Mr Turner was able to submit claims for medical expenses during the claim periods, he should also have been able to submit claims for travelling expenses, Mr Turner responded and said “I don’t think I would have been able...small claims...so many other things to cope with no one to help…always fighting or arguing…when you point to something the DVA always fights you”.

    Medical evidence

25. The medical evidence before the Tribunal is limited to four letters written by Dr Keshava, one dated 2008 and three from 2013.

26. In a letter to Dr Van Zanden,[5] dated 1 December 2008, Dr Keshava expressed the opinion that Mr Turner suffered from Generalised Anxiety Disorder with Alcohol Abuse. It was also noted that he suffered other medical conditions including hypertension, hyperlipidaemia, diabetes mellitus and chronic back pain.

    [5] Mr Turner’s general practitioner at that time.

27. In a letter to Dr Van Zanden, dated 8 February 2013, Dr Keshava  stated, inter alia, as follows:

    I had seen him once on 18.11.2008…I reviewed him on 5.2.2013…He said that “he met a Vietnam veteran while he was on a cruise last year. Apparently the other veteran constantly spoke to him about his Vietnam experiences and asked Paul to tell him about his experiences”. He remarked that it resulted in opening a “Pandorus box” [sic] and since that time his flashbacks and intrusive thoughts are troubling him constantly…he said since he talked to the other veteran on the cruise the symptoms have come back in vengeance...he can hardly sleep for one or two hours at night…he continues to suffer from chronic back pain…..diabetes mellitus, hypertension, hyperlipidaemia, partial deafness in the right ear and tinnitus

    He spoke in detail about his experiences during his review...He has flashbacks and intrusive thoughts about his traumatic experiences. His symptoms have increased and his condition has deteriorated since I had last seen him four years ago. Mr Turner definitely suffers from chronic war related Post Traumatic Stress Disorder with Anxiety and Alcohol abuse. I have asked him to increase his Cymbalta to 90 mg daily. I will review him in a month.

28. Dr Keshava’s letter dated 4 July 2013 is essentially the same as his earlier letter apart from an additional paragraph stating that Mr Turner was reviewed on “5.2.2013, 4.4.2013, & 28.6.2013”.

29. In a letter to the DVA, dated 9 August 2013, Dr Keshava confirmed that he first saw Mr Turner on 18 November 2008 and that he was sent again for review “as his condition had deteriorated” and he had reviewed him on “5.2.2013, 4.3.2013, 2.4.2013, & 28. 6.2013”.

30. Dr Keshava stated, inter alia, as follows:

    Mr Turner suffers from war related Post Traumatic Stress Disorder (chronic) with Anxiety State and Alcohol Abuse. He was in life threatening situations in Vietnam   …He has regular flashbacks and intrusive thoughts of the incidents and the names of his friends keep coming back to his mind constantly…he gets anxious…generally adapts avoidance behaviour…has difficulty relating with people …his frustration tolerance is low and loses his temper easily…”

    Department of Veterans’ Affairs

31. Included in documents dated 3 October 2013, which had been sent to Mr Roberts, who had been acting on behalf of Mr Turner at that time, confirming the decision of Repatriation’s Decision to accept the claim for Disability Pension, was an Information Leaflet.[6]

    [6] Copies of these documents were provided after the hearing at the request of the Tribunal.

32. Page 2 of the Information Leaflet, which was labelled, ‘Mr Paul Turner, DVA File No. SS04561’, included a paragraph entitled Travelling Expenses which stated as follows:

    You are entitled to claim from DVA, reimbursement of some expenses incurred when travelling to attend the closest suitable health care provider for treatment. All claims for reimbursement of travelling expenses must be made within 3 months of the date of the health care visit. Travelling expenses can only be reimbursed for health care treatment for your accepted conditions [emphasis added].

33. At the hearing, the Respondent provided the Tribunal with a copy of the Decision of the Repatriation Commission, dated 11 April 2006, to approve the recommendation of the Health Division to undertake “to amend section 112(3)(a) of the VEA to extend the period for lodgement of an application for reimbursement from three months to twelve months to all eligible persons”.[7]

    [7] The VE Act was amended on 6 July 2007.

34. Factsheet HSV02 – Claiming Travelling Expenses Under the Repatriation Transport Scheme states, inter alia, as follows:

    The form D800 Claim For Travelling Expenses must be lodged with in 12 months of completion of travel. Late claims may only be considered where there are exceptional circumstances that prevented you from lodging your claim. Any consideration must be made and must include supporting evidence for the delay. Reasons that that may be accepted are when:

    The claimant was incapacitated due to a clinical condition or was deemed medically infit to submit a claim during the claim period (e,g. extended hospitalisation;

    The claimant died within the three months of treatment.

    A claim was received late due to a third party losing or misplacing the claim form; or

    The claimant was undergoing a course of treatment extending more than three months e.g. radiotherapy and delayed lodging their claim until completion of this treatment

    CONSIDERATION

35. In the Statement of Facts, Issues and Contentions the Respondent submitted that:

    ·no evidence has been submitted that corresponds to the exceptional circumstances criteria as set out in the DVA policy document, Fact Sheet HSV02; and

    ·no exceptional circumstances have been established that would otherwise assist Mr Turner.

36. In addressing a contention, which had been raised by Mr Turner in the course of the hearing and incorrectly characterised as “the claimant was incapacitated due to a clinical condition and was deemed medically unfit to submit a claim, for example extended hospitalisation”,[8] the Respondent’s advocate submitted as follows:

    The Commission’s submission in this regard would be that that exceptional circumstance criterion is not satisfied.  Mr Turner was clearly, at the time prior, and after that time, suffering from his various conditions, specifically his two main areas, his psychiatric disability and his physical disability due to his arm and his back - or in the back and his legs…

    The evidence from Mr Turner is that although they affected him, he was still able to drive, he was still able to attend appointments, he was still able to submit claims in relation to the actual medical expenses derived from it, separate to the travel expenses, and in that regard the submission is, further, that he indicated that if he had been made aware, as he - if he had been made aware of his entitlement to claim travel expenses, he would have made those claims. So on Mr Turner’s own evidence the respondent submits that that criterion in relation to incapacity is not satisfied, on the balance of probabilities.[9]

    [8] Transcript pp 59/60.

    [9] The Respondent provided no documentary evidence with respect claims for medical expenses.

37. We note at this point that a reason which may be accepted as an exceptional circumstance is correctly expressed in the Factsheet as “The claimant was incapacitated due to a clinical condition or was deemed medically unfit to submit a claim during the claim (e.g. extended hospitalisation)”.

38. In response, Mr Turner stated as follows:

    I did say to you, when you asked me that, but I don’t think I would have been in a position to do it, even if I had known, because they were so small in dollar terms, each one, and I had so many other things I wasn’t coping with, that’s the problem.  But the reason I put that thing about that you - that I didn’t know is this is the way they act.  There is no one there to help people out, they seem to be always fighting you or arguing point so and so and so…

39. The VE Act does not define what constitutes exceptional circumstances.

40. For present purposes there appear to be two ways of establishing exceptional circumstances.[10] The first is whether, during the claim periods, exceptional circumstances, within the ordinary English meaning of the words, existed which justified extending the claim period.

    [10] Oreb v Willcock [2005] FCAFC 196; (2005) FCR 237.

41. The second way is that Mr Turner could rely on one of the accepted reasons as set out in Fact Sheet HSV02.

42. In Baker v The Queen[11] Callinan J referred with approval to what Lord Bingham of Cornhill had said in R v Kelly (Edward)[12] namely:

    We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

    [11] [2004] HCA 45; (2004) 223 CLR 513 at 573 [173].

    [12] [1999] UKHL 4; [2000] QB 198 at 208.

43. In Ho v Professional Services Review Committee, No. 295[13] Rares J, in considering the meaning of exceptional circumstances, stated that:

    [26] Exceptional circumstances within the meaning of s10KA(2) can include a single exceptional  matter, a combination of exceptional factors or a combination of ordinary factors which, although of no particular significance, when taken together are seen as exceptional……

    [27] It is not correct to construe exceptional circumstances as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstance s” as it were only a singular occurrence, even though it can be a one off situation. The he ordinary and natural meaning of exceptional circumstances in s 106K (2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon…..

    [13] [2007] FCA 388 (26 March 2007).

44. The evidence with respect to the claim periods can best be described as incomplete and does not provide a clear explanation for Mr Turner’s failure to submit any claims for travel expenses until 2016.

45. Mr Turner has provided a number or reasons for his failure to submit travel claims within specified period including being “unaware”, not being informed, the small amounts of money involved, the lack of support by the DVA and incapacity because of his mental health condition.

46. In our view most of his reasons, either singly or collectively, are not sufficiently unusual to be considered to be exceptional circumstances.

1. It is arguable that when Mr Turner was not notified of his successful application until about six months after the date of onset of this entitlement and provided with an Information Leaflet that contained relevant but incorrect information that this could be considered an exceptional circumstance. One would expect that the distribution of misleading information by the DVA would be an unusual and uncommon circumstance.  The difficulty, however, is that it is not clear whether Mr Turner, in fact read the leaflet and ignored it or was simply unaware of its content.

2. The more relevant issue is the evidence provided Dr Keshava which, in our view, clearly supports a conclusion that, prior to and during 2013, Mr Turner’s mental health had significantly deteriorated and that it is likely that he was incapacitated due to his mental health condition.

3. At the hearing, Mr Turner submitted that the incapacity continued unchanged until sometime in 2016 but was not able to provide any corroborating medical evidence.

4. On the evidence before the Tribunal we are satisfied, on the balance of probability, that during 2013 and for an unknown period thereafter, Mr Turner “was incapacitated” due to his mental health condition.

5. Therefore, we are satisfied that it is justified to extend claim period two so that Mr Turner’s claims for travel expenses during 2013 as of  2 April 2013 should be accepted.

6. As there is no evidence to support Mr Turner’s contention that his incapacity continued unchanged until 2016, we are not persuaded that it is justified to extend claim period one for the travel claims prior to 19 May 2016.

   DECISION

7. For the reasons set out above, the Tribunal is satisfied that the decision in respect of claim period two be set aside and, in substitution Mr Turner’s claims for travel expenses during 2013 from 2 April 2013 should be accepted.

8. The decision with respect to claim period 1 is affirmed. 

I certify that the preceding  54 (fifty - four) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member and Mr S Evans, Member

.............................[SGD]...........................................

Associate

Dated: 29 August 2019

Date of hearing:	8 August 2019
Applicant:	In person
Solicitors for the Respondent:	T O’Reilly, Repatriation Commission