Whittet and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 38

Whittet and Repatriation Commission (Veterans’ entitlements) [2016] AATA 38 (29 January 2016)

Division

VETERANS' APPEALS DIVISION

File Numbers

2014/4599

2014/4612

Re

Richard Whittet

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 29 January 2016

Place Sydney
Application 2014/4599
The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 refusing Mr Whittet’s claim in respect of macular degeneration, is affirmed.
Application 2014/4612
The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 assessing the rate of pension payable to Mr Whittet at 80% of the General Rate, is affirmed.
.............[sgd]..............................................
J W Constance
Deputy President
CATCHWORDS
VETERANS AFFAIRS - entitlements - war-caused injury - macular degeneration - whether applicant suffered macular degeneration - whether there is a hypothesis connecting the injury with the circumstances of the operational service - decision affirmed
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9, 120, 120A, 120B
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998)
Benjamin v Repatriation Commission [2001] FCA 1879
REASONS FOR DECISION
Deputy President J W Constance
29 January 2016
A: INTRODUCTION

On 17 October 2013 Mr Whittet made an application for macular degeneration to be accepted as a service-related condition in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer the condition which arose out of service he rendered as a member of the Royal Australian Navy.
On 23 June 2014 the Veterans’ Review Board affirmed a decision of the Repatriation Commission refusing the macular degeneration claim. The Board also affirmed the decision that Mr Whittet’s correct rate of pension (based on other accepted conditions) was 80% of the General rate.
Mr Whittet has applied to the Tribunal to review the Commission’s decision. The claim in relation to macular degeneration is the subject of Application 2014/4599; the claim dealing with the rate of pension is the subject of Application 2014/4612.
For the reasons which follow the decisions under review will be affirmed.
B: LEGISLATIVE BACKGROUND
B.1 War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be "war-caused". The relevant parts of that section are:
War caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or…

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.

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Details

Case: [2016] AATA 38
Decision Date: 29 January 2016

CaseChat Overview and Summary

The matter involves a dispute between Mr Whittet and the Repatriation Commission regarding the veteran's entitlements under the relevant legislation. The primary issue at hand is whether Mr Whittet has suffered from macular degeneration and, if so, whether there is a connection between this condition and his service in the armed forces. The case was heard and determined in the relevant Australian court.

The central legal issues addressed by the court were whether Mr Whittet had indeed suffered from macular degeneration and, if so, whether there was a sufficient hypothesis connecting this condition to his operational service. The court had to examine the evidence provided, including medical reports and expert testimony, to ascertain the facts and determine the legal questions at issue.

After a thorough review of the evidence, the court concluded that Mr Whittet does not suffer from macular degeneration. The court relied on the expert medical opinion of Dr Steiner, who examined Mr Whittet and found no evidence of macular degeneration. Instead, Dr Steiner identified pigmentary changes in the macula, likely related to a previous episode of central serous retinopathy. Furthermore, the court found that there was no material before it that suggested a connection between any condition and Mr Whittet's operational service.

The court affirmed the decisions of the Repatriation Commission, maintaining the refusal of Mr Whittet's claim for macular degeneration and upholding the assessment of his pension rate at 80% of the General Rate. The decisions were based on the lack of evidence supporting a connection between Mr Whittet's condition and his service, as well as the expert medical opinion that he does not suffer from macular degeneration.

Orders

Orders of the court

Application 2014/4599

The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 refusing Mr Whittet’s claim in respect of macular degeneration, is affirmed.

Application 2014/4612

The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 assessing the rate of pension payable to Mr Whittet at 80% of the General Rate, is affirmed.

Background

Background to the litigation

For the reasons which follow the decisions under review will be affirmed.B: LEGISLATIVE BACKGROUNDB.1 War-caused injury Section 9 of the Act sets out the circumstances in which an injury is taken to be "war-caused". The relevant parts of that section are:War caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…(e)the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease; but not otherwise.B.2 Standard of proof when claimed injury or disease said to arise out of operational service Section 120 provides, in part:Standard of proof(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war caused injury or a defence caused injury;(b)that the disease was a war caused disease or a defence caused disease; or(c)that the death was war caused or defence caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonableness of hypothesis to be assessed by reference to Statement of Principles

Evidence

Evidence Before The Court

On 27 July 1979 the fluorescein angiogram was performed on Mr Whittet’s left eye. Dr Billson and Dr Playfair reported that “ we are looking at a central serous retinopathy.”[5][5] Exhibit R1 p.31.Evidence of Dr Steiner, Consultant Ophthalmic Surgeon The only medical expert to give evidence in this application was Dr Steiner. He examined Mr Whittet on 3 June 2015, by arrangement between the parties. He provided a report dated 16 June 2015.[6][6] Exhibit R2. Dr Steiner reviewed the Service Medical Records of Mr Whittet and other medical reports and records, including the report of Dr Smith. Dr Steiner summarised the sequence of events concerning the diagnosis of Mr Whittet’s eye condition as follows:In 1978, Mr Whittet noticed a blur in one eye, he could not remember which side but thought it might be the right although, according to the files, it was actually the left. He saw Dr Freshney and had a fluorescein angiogram at Sydney Eye Hospital which was reported on by Professor Billson and Dr Playfair and they diagnosed a resolving central serous retinopathy. This settled and at later visits in 1979 Dr Freshney noted that there were mild degenerative changes at both maculae.He has been short-sighted most of his life, significantly worse on the left and has worn glasses for this time. He had had no problem since his original episode but four or five years ago saw Dr James Smith and was told that he had early cataracts and dry macular degeneration. He was put on Macu-Vision orally and given an Amsler Grid to check his central vision regularly. His vision has deteriorated a little.[7][7] Exhibit R2 p.2. In the opinion of Dr Steiner:“Mr Whittet does not suffer from macular degeneration. He has pigmentary macular changes almost certainly related to mild episodes of central serous retinopathy and on the left he also has mild epiretinal membrane.……The clinical onset of the condition of central serous retinopathy was in 1978. Since then, he has had no symptoms and the condition of his maculae seems to have changed little since that time.” ……He has very mild cataracts and has an epiretinal membrane below the left macula. He also has myopia which has been present most of his life and is significantly worse on the left. [8][8] Exhibit R2 pp3-4. Dr Steiner examined Mr Whittet’s eyes using Ocular Coherence Tomography, the most accurate diagnostic tool available. Mr Whittet has none of the changes associated with macular degeneration; he has had pigmentary changes in the macula for 35 years, which have not progressed. At the time Dr Freshney examined Mr Whittet the understanding of macular degeneration was not as advanced as it is now. The subsequent angiogram and diagnosis of central serous retinopathy showed that the condition was not macular degeneration. Degenerative changes at the macula are not the same as macular degeneration, which is a specific condition.Discussion On the basis of the evidence of Dr Steiner I am satisfied on the balance of probabilities that Mr Whittet does not suffer from macular degeneration and has not done so previously. I have reached this conclusion as I am satisfied that Dr Steiner gave careful consideration to the reports expressing opinions contrary to his own and that he had the benefit of the most recent understanding of the condition and the most up-to-date means of examination.

Decision

Reasons for decision

It was not argued on behalf of Mr Whittet that the material before me raised a connection between any of the conditions and either the operational or defence service rendered by him. There is no material before me which raises such a connection.CONCLUSIONApplication 2014/4599 The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 refusing Mr Whittet’s claim in respect of macular degeneration, will be affirmed.Application 2014/4612 The reviewable decision, being the decision of the Repatriation Commission made 23 June 2014 assessing the rate of pension payable to Mr Whittet at 80% of the General Rate, will be affirmed.

Ratio Decidendi

Legal Principle Established

Section 9 of the Act sets out the circumstances in which an injury is taken to be "war-caused". The relevant parts of that section are:War caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…(e)the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease; but not otherwise.B.2 Standard of proof when claimed injury or disease said to arise out of operational service Section 120 provides, in part:Standard of proof(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war caused injury or a defence caused injury;(b)that the disease was a war caused disease or a defence caused disease; or(c)that the death was war caused or defence caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonableness of hypothesis to be assessed by reference to Statement of Principles

Division	VETERANS' APPEALS DIVISION
File Numbers	2014/4599 2014/4612
Re	Richard Whittet
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	29 January 2016
Place	Sydney