Whittet and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 38
•29 January 2016
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 PresidentCATCHWORDS
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 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
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Subsection 120A(4) provides:
Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
B.3 Standard of proof when claimed injury or disease said to arise out of defence service
Subsection 120(4) provides:
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Subsection 120B(1) provides:
This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Subsection 120B(3) provides:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
C: THE DELEDIO PRINCIPLES
In Repatriation Commission v Deledio[1] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service once any issues relating to the type of service and the diagnosis of the condition suffered by the claimant have been determined. The Full Court said:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[1] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).
D: ISSUES FOR DETERMINATION
I have to determine the following issues:
(1) Did Mr Whittet render operational and/or defence service and if so, when?
(2)Does Mr Whittet suffer from macular degeneration or other relevant condition?
(3) If he does, when was the clinical onset of the condition or conditions?
In relation to a condition claimed to have arisen from operational service
(4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the macular degeneration with the circumstances of the operational service?
(5)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
(6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
(7)If so, considering section 120(1), am I satisfied beyond reasonable doubt that the disease suffered by Mr Whittet was not war-caused?
In relation to a condition claimed to have arisen from defence service
(8)Does the material before the Tribunal, raise a connection between the condition and some particular service rendered by Mr Whittet?
(9)If such a connection is raised, is there a relevant Statement of Principles in force?
(6)If a relevant Statement of Principles is in force, does it uphold the contention that the condition is, on the balance of probabilities, connected with Mr Whittet’s defence service?
E: DETERMINATION OF THE ISSUES
Issue 1: Did Mr Whittet render operational and/or defence service and if so, when?
It is not in dispute that Mr Whittet rendered service as follows:
·operational service on board HMAS SYDNEY from 22 April 1966 to 18 May 1966 and 25 May 1966 to 11 June 1966;
·defence service from 7 December 1972 to 30 May 1986.
Issue 2: Does Mr Whittet suffer from macular degeneration or other relevant conditions?
The question of whether Mr Whittet suffers from macular degeneration or other relevant conditions is to be decided according to the standard of “reasonable satisfaction” set out in subsection 120(4) of the Act.
Report of Dr Smith, Opthalmic Surgeon[2]
[2] Exhibit A1.
Mr Whittet was examined by Dr Smith in January 2006 on referral from Mr Whittet’s general practitioner.
On 27 January 2010 Dr Smith reported:
The diagnoses are diabetes, age-related macular degeneration, myopia, astigmatism, divergent strabismus and cataract.
All these were present when I first met him on 27th January 2006, referred by his local doctor – Dr Ivor Burfitt.
….
His subjective visual problems are probably 50% due to his macular degeneration and 50% due to his cataract.
Service Medical Records
On 20 December 1977, Dr Gillespie, Consultant Ophthalmologist examined Mr Whittet and noted:
Presumably a very early maculopathy due to his moderately high degree of myopia. However, I would suggest just to eliminate any question of an old S central serous retinopathy it would be advisable, just to check, to have an angiogram done.[3]
[3] Exhibit R1 p.24
On 14 June 1979 Dr Leslie, Surgeon, recorded a diagnosis of “Bilateral macular degeneration with irregular surface left maculae.” [4]
[4] Exhibit R1 p. 30.
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.
In giving his evidence, Dr Steiner was aware that the Statement of Principles concerning Macular Degeneration (No.13 of 2009) includes a definition of “Macular Degeneration” which provides, in part, that the term means “degenerative changes involving the macular of the eye, either involving soft drusen or pigmentary abnormalities …”. Notwithstanding this definition, Dr Steiner was firmly of the view that the pigmentary changes in Mr Whittet’s eyes is not medically diagnosable macular degeneration.
In Benjamin v Repatriation Commission [9] the Full Court of the Federal Court said:
The Tribunal erred in so far as it failed to consider whether or not those psychiatric problems might be a disease and might be war caused within the meaning of the Act. The primary judge correctly held that the Tribunal erred in regarding itself as bound to apply the definition in SoP 15 of 1994. However, the primary judge erred in failing to conclude that the Tribunal fell into error in not considering whether the psychiatric problems were war caused. It is not clear that his Honour was referred to the principles enunciated in Grant's Case. We do not understand the Commissioner to contest those principles. His Honour erred in so far as he failed to have regard to those principles. The application of those principles in the present case would have required that the matter be remitted to the Tribunal for decision according to law.
[9] [2001] FCA 1879 at para.50.
Having decided that Mr Whittet does not suffer from macular degeneration it is unnecessary to consider the further issues in relation to that condition. However it is necessary to consider whether any of the conditions of pigmentary macular changes, cataracts and the presence of an epiretinal membrane are conditions which should be accepted as being war-caused.
Issue 4: Considering all the material before the Tribunal, does it point to a hypothesis connecting any of the conditions of pigmentary macular changes, cataracts and an epiretinal membrane with the circumstances of the operational service?
At the conclusion of the evidence I asked Mr Whittet’s representative if it was put that there was such an hypothesis. No hypothesis was put. In my view there is no evidence before me pointing to any such hypothesis.
Issue 7: Does the material before the Tribunal, raise a connection between any of the conditions of pigmentary macular changes, cataracts and epiretinal membrane and some particular service rendered by Mr Whittet?
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.
CONCLUSION
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, 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.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ......................[sgd]..................................................
Associate
Dated 29 January 2016
Date(s) of hearing 24 June 2015, 5 November 2015 Date final submissions received 5 November 2015 Advocate for the Applicant P Wilson Solicitors for the Respondent K Rudge; Department of Veterans' Affairs
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Standing
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Statutory Construction
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