Van Heteren and Repatriation Commission
[2004] AATA 661
•25 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 661
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/508
VETERANS’ APPEALS DIVISION ) Re PETRUS WILHELMUS VAN HETEREN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date25 June 2004
PlaceAdelaide
Decision The Tribunal decides that the proposed psychiatric examination and the foreshadowed examination by a heart specialist are examinations likely to affect the Tribunal’s decision on the rehearing of the applicant’s claim, and so if the veteran were to refuse to undergo those examinations the Tribunal would exercise the power under s 19A(1) of the VE Act to defer further consideration of the claim until the applicant had undergone the examinations.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – special rate of pension – whether war-caused injury or disease alone rendered veteran incapable of undertaking remunerative work – remitter from Federal Court – whether updated medical reports are likely to affect the decision as to the entitlement to special rate of pension – issues relevant to determination of whether war-caused disease alone renders applicant incapable of undertaking remunerative work
PRACTICE AND PROCEDURE – veterans’ entitlements - refusal to undergo medical examination – whether medical examination and resulting information is likely to affect decision on whether veteran entitled to special rate of pension – application to defer further consideration of claim until veteran has undergone medical examination
Veterans’ Entitlements Act 1986 (Cth) ss 19A, 24(1)(b) and 24(1)(c)
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Repatriation Commission v Alexander (2003) 75 ALD 329
Banovich v Repatriation Commission (1987) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Lees and Repatriation Commission [2004] AATA 583
REASONS FOR DECISION
25 June 2004 Deputy President D G Jarvis Introduction
1. The applicant applied for special rate pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”) on 2 November 2000. His application was rejected by the respondent and that rejection was affirmed by the Veterans’ Review Board (“VRB”). Following a review by this Tribunal, the respondent’s decision as affirmed by the VRB was set aside, and the Tribunal decided on 11 February 2003 that the applicant was entitled to special rate of pension as from 27 November 2001.
2. An appeal against the Tribunal’s decision was allowed by the Federal Court on 27 August 2003 (Repatriation Commission v Van Heteren (2003) 75 ALD 703, Finn J), and the Court set aside the Tribunal’s decision and remitted the matter to the Tribunal to be heard and determined again.
3. When he lodged his application for special rate pension in November 2001, the applicant had a number of disabilities which were accepted by the respondent as war-caused, namely a shrapnel wound to the right thigh, post traumatic stress disorder (“PTSD”) with alcohol abuse, gastro-oesophageal reflux disease and diabetes mellitus. After the date of the VRB decision rejecting his claim, the respondent accepted a claim for ischaemic heart disease (“IHD”) as a war-caused disease. The applicant had a number of other disabilities which were not war-caused, including a shoulder condition. The Tribunal held that this new condition of IHD alone prevented the applicant from continuing to engage in remunerative work for the purposes of s 24(1)(c) of the VE Act.
The Issue
4. In the course of preparing for the re-hearing of this matter following the remittal from the Federal Court, the respondent advised the applicant that it required him to be examined by a consultant psychiatrist nominated by the respondent, as well as by an occupational physician.
5. The applicant advised the respondent and the Tribunal that he objected to being examined by a psychiatrist. The respondent then requested a directions hearing “in order to clarify [its] right under s 19A of the Veterans’ Entitlements Act 1988 (sic) to require the applicant’s attendance [with the psychiatrist], as a preliminary step to his progressing his review application in the Tribunal” (see an email dated 15 December 2003 from the respondent’s solicitor to the Deputy District Registrar). The respondent has recently advised that it will also require the applicant to be examined by a heart specialist, and the applicant has said that he would also object to being examined by a heart specialist for the same reasons as he objected to being examined by the consultant psychiatrist.
6. At an interlocutory hearing to determine the above issue, Mr S Ower of counsel appeared for the applicant, and Ms S Maharaj of counsel appeared for the respondent.
7. The issue before me at this interlocutory hearing was accordingly whether, in my opinion, the proposed examination by the consultant psychiatrist was likely to affect my decision in respect of the applicant’s claim for special rate pension.
Legislation
8. Section 19A of the VE Act provides for the eventuality that a veteran may refuse to undergo a medical examination. Section 19A(1) provides relevantly as follows:
“(1) Where:
(a)a claimant, being a veteran, has refused or failed to undergo a medical examination for the purpose of the investigation of the claim or the consideration of the claim by the Commission; or
…
the Commission may, if it is of the opinion that that medical examination, information or material is likely to affect the decision it will make in respect of the claim, defer further consideration of the claim until the veteran has undergone the medical examination, … and, if it does so, the Commission shall serve on the claimant a notice, in writing, informing the claimant that the claim has been so deferred.”
Under s 19A(2), if, at the expiration of six months after a claimant has been informed under s 19A(1) that a claim has been deferred by reason of the refusal or failure of a veteran to undergo a medical examination, the veteran has not undergone the medical examination, the claim is deemed to have been refused.
9. Section 24 of the VE Act provides for the circumstances in which a veteran is entitled to the special rate pension. Paragraphs (b) and (c) of s 24(1) of the VE Act are relevant to the present matter. They provide as follows:
“24(1) This section applies to a veteran if:
…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; … .”
Consideration
10. Mr Ower advised that the applicant had agreed to be reviewed by Dr P Jezukaitis (who is a consultant physician) because the applicant assumed that this examination related to the applicant’s physical non-accepted disabilities. However, Mr Ower further advised and submitted that the applicant maintained his objection to being examined by a psychiatrist nominated by the respondent, on the grounds that:
(a) the applicant’s condition of PTSD with alcohol abuse was an accepted disability;
(b) the respondent had conceded that the requirements of s 24(1)(b) had been fulfilled (that is, that the applicant’s incapacity from war-caused injury or disease alone rendered the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week);
(c) section 24(1)(c) entailed looking at whether there were any other factors (i.e. non-accepted disabilities or non-medical factors such as age, time out of the work-force or state of the employment market) which contributed to preventing the applicant from continuing to undertake remunerative work;
(d) the focus of the questions under s 24(1)(c) was whether or not there are non-accepted disabilities or other non-medical related issues that have contributed to the applicant being prevented from continuing to undertake remunerative work or (so far as the loss aspect of s 24(1)(c) was concerned) that affected the applicant’s decision to cease to undertake remunerative work;
(e) as s 24(1)(b) was not in issue, it was not helpful to obtain a report from a psychiatrist; and
(f) the obtaining of a report from a psychiatrist would delay unnecessarily the progress of the matter and would be inconsistent with s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides, in effect, for proceedings before the Tribunal to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit.
11. Under s 19(5C) the Commission must assess the rate or rates at which the pension applied for by the veteran would have been payable from time to time during the assessment period, and the rate at which the pension is payable. The expression “assessment period” is defined in s 19(9) as follows:
“assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.”
12. As counsel for the respondent pointed out, the medical evidence before the Tribunal at the first hearing, as summarised in the Tribunal’s reasons for decision, is no longer up-to-date. This consideration would on the face of it suggest that up-to-date medical assessments of the applicant’s disabilities should be obtained, as these would provide information likely to affect my decision as to the applicant’s claim. However, it is necessary to consider the issues raised by s 24 of the VE Act in order to determine whether this is so.
13. I have noted the concession by the respondent that the applicant has satisfied s 24(1)(b) of the VE Act, but in my opinion this does not mean that it is not necessary for the Tribunal to consider the effects of the applicant’s accepted disabilities.
14. In Repatriation Commission v Alexander (2003) 75 ALD 329, Spender J said (at [12] and [13]) that s 24(1)(b):
“… addresses the severity of incapacity from war-caused injury or war-caused disease. It imposes a requirement, for the special rate of pension with which s 24 is concerned, that the veteran be totally and permanently incapacitated, which is defined by s 24(1)(b) to be an incapacity from war-caused injury or war-caused disease or both to be of such a nature as, of itself alone to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Section 24(1)(b) thus addresses the extent of the veteran’s war-caused incapacity
… .”
15. Under s 28 of the VE Act, in determining for the purposes of s 24(1)(b) whether a veteran who is incapacitated from war-caused injury or disease, or both, is incapable of undertaking remunerative work, the Commission must have regard only to three enumerated matters, being:
“(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
However, the remunerative work referred to in s 24(1)(c) is work of the type which the veteran had undertaken in the past: Banovich v Repatriation Commission (1987) 69 ALR 395 at 402. This entails different considerations from determining the veteran’s incapacity to undertake remunerative work for the purposes of s 24(1)(b).
16. In Alexander (supra) Spender J went on to say (at [13] and [14]) that s 24(1)(c):
“… is directed at a quite different question, causation. Section 24(1)(c) requires that the veteran’s war-caused incapacity, and only that war-caused incapacity, prevented the veteran from continuing to undertake remunerative work that the veteran was undertaking.
Section 24(1)(c) is a “sole cause” requirement: the subsection contains the requirement that incapacity from war-caused injury or war-caused disease or both “alone” prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking.”
17. I consider that the respondent’s concession that the applicant has satisfied s 24(1)(b) does not enable the applicant to meet the causation test in s 24(1)(c). In the large majority of cases arising under s 24(1)(c) the issue arising from determination is the “alone” aspect of that section, that is, whether there are any other non-accepted disabilities or non-medical related issues which are a factor in contributing to the veteran being prevented from continuing to undertake remunerative work. However, in order to satisfy s 24(1)(c), it is first necessary to determine whether the veteran is, by reason of his accepted disabilities, prevented from continuing to undertake the relevant remunerative work. This entails a consideration of the war-caused disabilities and their effect on the veteran’s ability to undertake remunerative work. It is a different question than that arising under s 24(1)(b). I accordingly consider that the obtaining of an updated psychiatric report would provide information that is likely to affect the Tribunal’s decision in respect of the applicant’s claim.
18. In considering the possible relevance of an updated psychiatric report, I have postulated different scenarios, since at this stage, of course, I am unaware of what information might be provided to the Tribunal as a result of a further psychiatric examination.
19. One possible outcome might be that the applicant’s accepted psychiatric condition has become very much worse to the point where it is of overwhelming severity. In this event, if the applicant’s condition, viewed with an eye to reality and as a matter of common sense (in accordance with the approach in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539) were of this extreme degree of severity, it could not reasonably be concluded that any non-war-caused condition or other non-medical related issues were factors preventing the applicant from continuing to undertake remunerative work.
20. On the other hand, if the updated medical assessment indicated that the applicant’s accepted psychiatric condition had a less extreme effect on his ability to undertake the relevant remunerative work (but so that the applicant nevertheless remained disabled to the extent that he satisfied the test in s 24(1)(b)), then it might not be possible for the applicant to satisfy the alone test and it might more readily be concluded that non-accepted disabilities or other non-medical issues were factors in his inability to undertake remunerative work.
21. Another possible outcome of obtaining an updated psychiatric assessment might be that the consultant will nevertheless conclude that the applicant is not now suffering from PTSD with alcohol abuse, or perhaps that that condition is not war-caused. Whilst the respondent’s counsel made it clear that the respondent did not propose to ask the consultant psychiatrist to reconsider the question of diagnosis or the question of whether PTSD with alcohol abuse should be accepted as war-caused, the consultant psychiatrist might nevertheless consider these threshold issues, and arrive at either or both of the conclusions which I have postulated. If the consultant psychiatrist did arrive at either or both of these conclusions, the respondent would be obliged under s 19(2) to consider that further evidence, and to take it into account in determining the applicant’s claim, and the Commission would not be estopped from doing so on the grounds that the Commission had previously accepted that the applicant was suffering from PTSD with alcohol abuse, and that that condition was war-caused: Re Lees and Repatriation Commission [2004] AATA 583.
22. The above hypothetical possibilities indicate that the obtaining of an updated medical assessment might provide information that is likely to affect the Tribunal’s decision in respect of the applicant’s claim.
23. Counsel for the respondent further submitted that the obtaining of up-to-date medical reports as to the accepted disabilities would enable the respondent to re-assess the applicant’s claim, and if the updated medical reports were favourable to the applicant, the respondent might decide to allow the applicant’s claim under s 24(1)(c). Such a decision could be made under s 31(2), and would of course put an end to the proceedings in this Tribunal.
24. In all of the circumstances, I consider that an up-to-date psychiatric examination of the applicant, and the information available following that examination, is likely to affect the decision the Tribunal is to make in respect of the applicant’s claim. The same considerations apply in respect of the foreshadowed medical examination in respect of the applicant’s IHD.
Decision
25. For the above reasons, I decide that the proposed psychiatric examination and the foreshadowed examination by a heart specialist are examinations likely to affect my decision on the rehearing of the applicant’s claim, and so if the veteran were to refuse to undergo those examinations I would exercise the power under s 19A(1) of the VE Act to defer further consideration of the claim until the applicant had undergone the examinations.
I certify that the 25 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 17 June 2004
Date of Decision 25 June 2004
Counsel for the Applicant Mr S D Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Ms S J Maharaj
Solicitor for the Respondent Australian Government Solicitor
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