Williams, D.G. v Repatriation Commission
[1988] FCA 428
•8 May 1988
CATCHWORDS
VETERANS' AFFAIRS - disabillty pension - Guide to the Assessment of Rates of Veterans' Pensions - whether rates for special disabilities in Table 1 can be built upon for other disabilities - whether transitlonal provlslons prevent the reduction of a pension rate by the Administrative Appeals Tribunal.
Veterans' Entitlements Act 1986 ss.29,157(2), 177(2)
Veterans' Entitlements (Transitlonal Provisions and
Consequential Amendments) Act 1986 s.7(3)
DAVID GRANT WILLIAMS V REPATRIATION COMMISSION No. VG 434 of 1987 Woodward J 5 August 1988 Melbourne
IN THE FEDERAL COURT OF AUSTRALIA)
)
VICTORIA DISTRICT REGISTRY 1 No. VG 4 3 4 of 1987 )
| DIVISION | GENERAL | ) |
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
DAVID GRANT WILLIAMS Applicant and
REPATRIATION COMMISSION Respondent MINUTES OF ORDER
- COURT: woodward J
- DATE: 5 August 1988 PLACE: Melbourne
THE COURT ORDERS THAT:
1. The application be dismissed. 2 . The applicant pay the respondent’s costs.
- 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 1 No. VG 4 3 4 of 1987 1
| DIVISION | GENERAL | 1 |
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
DAVID GRANT WILLIAMS Applicant and
REPATRIATION COMMISSION Respondent
COURT: Woodward J
- DATE: 5 August 1988 PLACE: Melbourne
REASONS FOR JUDGMENT
This 1s an appeal on questions of law from a
decision of the Administrative Appeals Tribunal ('the
Tribunal') constituted by Mrs Rosemary Balmford, Senior Member. It relates to the pension payable to the appllcant under the Veterans' Entitlements Act 1986 ('the Act').
The decision which the appllcant had taken on
appeal to the Tribunal was one in which the Veterans' Review
Board ('VRB') had decided, on 28 November 1986,
'I- to set aside a declslon of a Repatriatlon Board; and
- to grant the applicant pension in respect
of left central retinal artery thrombosis
wlth effect from 14 May 1985; and-
to assess the applicant's incapacity as from 14 May 1985 at eighty per cent of the general rate."
The relevant hlstory of the applicant's receipt of a veteran's pension was summarlzed by the Tribunal in the following terms:
"Mr. Willlams, who was born on 19
September 1925, served in the Royal Australlan Navy from 2 December 1942 to 29 March 1946, some of that service being outside territorial waters. He is thus a 'veteran' within the meanina of Daraarauh (a) of the definition in . . ~~~ ~ _. ~ -..- -..
sub-section-S( 1 og the Veterans' Entitlements Act 1986 ('the Act').
-
Mr. Williams has had the following
disabilities accepted as being war-caused
within the meaning of the Act:-
Disability Wlth effect from
Buerger's disease 27/8/46 Hypermetropic Astigmatism 3 0/5/4 9 Basal cell carcinoma 19/7/8 4 Bronchitis and Emphysema 13/a/a 4 Postural dizziness 13/a/a 4 Left central retlnal artery thrombosis
He has been in receipt of a disability pension since 6 May 1947 and the rate of that pension was increased from ten per cent to slxty per cent of the general rate by a decision of the Repatriation Commission on 17
September 1985 with effect from 13 August 1984. The decision of a Repatriation Board which was set aside by the VRB was a declsion, made on 11 June 1973, re~ecting (inter alla) Mr. Williams' claim for incapacity resulting from left central retinal artery thrombosis. Mr. Williams did not lodge any document whlch could be characterised as an application for
review of that decision untll 19 October 1984, when he lodged a formal claim In respect of
'loss of vision left eye'."
The Tribunal's final decision was expressed in the
following terms:
Table 1, to a penslon at a rate of flfty per ' l.. . Mr. Willlams is entitled, pursuant to
when the declsion of the Repatriation
cent from 19 April 1984 until 13 August 1984, cent took effect; and to an additional payment under Section 21, over and above his
percentage assessment, from 19 April 1984 onwards." [The additional payment under s.27
has no relevance to the present appeal.]
The Tribunal's decision that 50% of the general
rate was appropriate for the applicant was arrlved at byassessing his impairment rating from chronlc bronchitis and
emphysema at 15%, his impalrment from loss of visual acuity In one eye at 20%, the combined impairment rating as 3 2 % ,
rounded down to 30%, and his lifestyle rating as 2. Applylng the appropriate table to these ratings gave a pension
assessment of 50% of the general rate, backdated to 19 Aprll 1984. The Tribunal also found that the same result of
50% was reached by applying a rate for specific disabilities
of 50% for the loss of vision in one eye. However the applicant was held entitled to a 60%
pension rate from 13 August 1984, because that figure had been awarded under the leglslation and assessment system which had obtained before the Act was passed, and there was provlsion that such an assessment would not be reduced except in special circumstances which did not apply In the present case. The applicant has challenged the Tribunal's decision on a number of different grounds, which touch on most of the steps described in the last three paragraphs. The task of following his submissions has not been made easier by the fact that he set out his grounds of appeal in 9 paragraphs, lettered (b) to (j), but developed his arguments under 0 headings, numbered 2-9, whlch did not necessarily co-incide with any ground of appeal. He dld not develop grounds of appeal (c)(d) or (g); nor did he proceed with his heading numbered 4.
It was agreed before the Tribunal, and again before
this Court, that the assessment of MC Wllliam's Incapacity arising from his war-caused disabilities should be based on the provlsions of the Guide to the Assessment of the Rates of
Veterans' Pensions ('the Guide'), which was prepared and approved pursuant to s.29 of the Act.
The applicant's headings which he argued, and the relevant grounds of appeal, were as follows: 2. Ruling of contra proferentem and/or ambiguit in respect of Table 1 of [the Guide] togethe:
with the full applicatlon of Table 1 of [the
Guide] from19.4.84 without inclusion of other impairment ratlngs.
Ground (e) Mrs Balmford erred in he r
interpretation of Table 1 of "the Guide" in that she included other dlsabilitles and lifestyle and impairment ratings in her 50 per cent assessment when indeed the 50 per cent of the General Rate allowable for loss of vision in one eye has been drawn from Schedule 4 of the Repatriation Act 1920 and was not arrived at by using
the concepts of "the Guide".
Ground (j) Because I have been denied natural lustice I also require determinatlons by this honourable Court in respect of the rule of estoppel in an appllcation for T&PI rating and the rule of contra proferentem in respect of Table 1 of the Guide.
Under this heading, the applicant argued that the special payment of a pension at 50% of the general rate for the loss of vision in one eye, provided for in Table 1 of the Guide, should be seen as a base payment, on which other payments for related or unrelated dlsabilltles can be built.
The respondent, on the other hand, argued that
Table 1 is incompatible wlth other provlsions In the Gulde. Its intention is to provide 'a rate of last resort', which cannot be added to by other provisions. Counsel pointed out that the table is expressed to give a percentage of the general rate. It does not speak in terms of a percentage
degree of disability, and so cannot be added to other degrees of disability. The very fact that most of the ~n-~uries
listed attract 100% of the general rate, serves to show thatthis provision was not Intended to be built upon, but stood
alone as an alternative way of assessing entitlement. The notes to Table 1 of the Guide read as follows:
"These are mlnlmum final assessments regardless of the outcome of an
assessment of
the Veteran's impairment and lifestyle
effects. If a Veteran suffers from an
impairment listed in Column 1 above, the minimum assessment is that appearing in Column
2 .
Applicatlon of these assessments is the responsibility of the Determining Authority.
The percentages of the General Rate
Pension ascribed to the specific disabilitles listed above are drawn from Schedule 4 of the
Repatriation Act 1920 and have not been
arrived at by using the concepts in this Guide. "
In my view the respondent's arguments are sound. I
think the use of the words "minimum final assessments'' (underlining supplied) produces the clear result that the concepts of the Guide are to be followed through, and only if they produce a lower result than that set out in Table 1 does that table come into operatlon. Of course, in those cases where the table provides for 100% of the General Rate to be paid, there will be no need for any General Rate assessment pursuant to the Guide.
3 . Increase of rating under Table 9 of [the
Guide1 to N.P.L. or 25% as from 19.4.04. (NO relevant ground of appeal).
Here the applicant's complaint is that the Tribunal
misused Table 9 of the Guide to allow him a rating of 20 for his loss of sight In one eye, when it should have been 25.
The relevant part of the Table reads:
"6/60 20
3/6 0 20 NPL 25" (NPL stands for "no percelved llght")
The evidence showed that several doctors had
categorised the applicant's slght in that eye as "less than 6/60", some had said "less than 6/120" (equivalent to 3/60)
and the applicant himself had claimed "less than 1/60".
This is a finding of fact by the Tribunal. There
is no provision f o r a ratlng between 20 and 25. There was no medical evidence that "no perceived light" was the appropriate description of the applicant's vision in that eye, and in these circumstances a findlng that 20 was the appropriate rating was clearly open to the Tribunal.
5. Increase of Table 4 .l of [the Guide] to 25% as from 19.4.84 to include mucus production and
cough.
(No relevant ground of appeal).
The applicant claims that the Tribunal should have
assessed his impairment rating as 25% under Table 4.1 of the Guide, "Respiratory Impairment," to make allowance for "mucus production and cough". However the note to Table 4.1 reads:
"Symptoms such as cough, mucus production and recurrent infection attract an assessment
only if they interfere with actlvities of
daily living. Refer Activities of Daily
Living Table if necessary . . . . ' I
The Tribunal's relevant flnding on this matter was: "He described the effects of the
condition diagnosed as "chronic bronchitls and emphysema" at more length. Exercise causes hlm shortness of breath, he s n o r e s , coughs, wheezes and showed a ventilatory function greater than 70% of normal: a report of 14 November 1986 showed little change since the earlier date. I note Mr. Williams' evidence at the hearing that he smokes 6 0 cigarettes a
day, from which I assume that the inconvenience caused to him by this condition is not so great as to motivate him to give up smoking. No effects of the condition were
apparent at the hearlng. I find from Table 4.1 an impairment rating of 15%."
the heading of 'Lifestyle effects' the Tribunal made an assessment which It considered appropriate Under
for "intermittent interference" with personal relationshlps. This would seem quite clearly to cover coughing and the production of mucus.
These were findings of fact which were open to the
Tribunal. I can detect no error of law in this connexion.
Ground (h) Mrs Balmford failed to take into
account my wrltten submission and in so doing denied me natural justice. She erred in this because in the submlssion there was the copy of an application referred to as exhibit "M" which was for T&PI rating and which was dealt with by the Veterans' Review Board. Mrs Balmford therefore incorrectly dealt wlth this question and also the section which deals with veterans who
retire under the age of 65 years.
This headlng represents the most complex part of the applicant's submlsslon, but I do not
flnd it necessary to
deal with all its complexities.
Mr Williams claims that he is entitled to a special
(or 'ThPI') rate, rather than the general rate, of pension because he was forced to retire from work before reaching the age of 65. He says that hls appllcation to this effect was
before the Tribunal because he handed up a copy of his written submissions, which had attached to them a copy of an application, which seems to have been dated 6 August 1986 and lodged on 20 August 1986, which sought a special rate pension and asked that it be considered along with the then pendlng appeal to the VRB. It was common ground between the parties that this was Mr Williams' first applicatlon for a special rate pension. The Tribunal explalned clearly why the speclal
rate could not be granted on the application whlch was
properly before it. Mr Williams did not challenge this and based his argument on the August 1986 applicatlon.
Although the VRB did, as it apparently always does,
consider all the applicant's disabilities, it did not purport to deal with the August 1986 application, which
had not been
considered by the respondent at that stage. The Tribunal was pressed by Mr Williams to rule on
this applicatlon and said, in the final paragraph of its
decision: "Finally, Mr. Johannes [appearing for the respondent] referred to a further application lodged by Mr. Williams in November 1986 and
medical reports obtalned in connection therewith. That matter is not before this Tribunal, and it does not appear to me that I can make any order in respect of that application, which 1s a matter for separate consideration by the respondent."
The reference to November rather than August 1986 appears to be a slip. A medlcal report arising from the application was dated November. Further, it is clear that the Tribunal meant that the applicatlon was not before it as a matter of law - not that it was not physically In its possession.
This was clearly right, and the Court was informed
that the application has since been dealt wrth by the Commission and a pension at o r about 90% of the general rate has been granted. Far from being a denlal of natural justlce, lt
would, in my view, have been wrong for the Tribunal to attempt to deal with the complex issue raised by the 1986
appllcation when It had not even been ruled on by the Commission, let alone the VRB.
7 . Assessment of loss of stereopsis and double
vision under "Notes" of Table 9 of [the Guide] in accordance wlth A.M.A. guides.
Ground (b) Mrs Balmford erred In her assessment
under Table 9 of the Gulde to the
Assessment of Rates of Veterans' Pensions in that she did not Include loss of stereopsis and double vision.
Under thls heading M r Willlams informed the Court
that he no longer needed to argue the question of stereopsls,
but he dld press hls contentlon about diplopia, o r double-vision. He argued that the effective use of his comparatively sound right eye was reduced by double vision
resulting from his almost blind left eye. He conceded that there was no evidence before the Tribunal which would have enabled it to assess the degree of disability resulting from
this factor, but said that the Tribunal should have ordered a medical assessment. Counsel f o r the respondent argued that there was nothing in the Guide or in evidence before the Tribunal to suggest that additional disability points should be allowed for diplopia. It was something which should be taken into account under the Lifestyle rating.
The evidence on thls subject relled on by both parties was contained in a report dated 4 August 1987 from an eye specialist, DK Robert Nave. Dr Nave summarized his findings as follows:
"In my opinion the ocular findings are
consistent with Mr. Wllliams having sustained a branch artery occlusion in his left eye, which has left him with a relatively small central scotoma in that eye. He is legally blind on account of the fact that he has a visual acuity of less than 6/60, ie greater than 85% disability.
With respect to his claim that the retention
o f peripheral vision in his left eye has interfered with his ability to adjust to a loss of binocular vlsion, I find his contention difficult to comprehend. Binocular visual function has three components,
simultaneous macula perception, fusion and stereopsis. Certainly with the central scotoma in his left eye he has lost simultaneous macula perception but he should still retain peripheral fusion and the titmus
stereo test showed that he does have some stereoscopic vision. In percentage terms he has 30% stereopsis, ie. 70% loss of stereopsis.
In my opinion it is an advantage for him to
retain peripheral vision in his left eye
rather than a dlsadvantage as he claims. He claims to occaslonally experience diplopla,
presumably due to the fact that his binocular
visual functions are not as good as they were
prior to the artery occlusion and occaslonally
his ability to fuse Images tends to break
down, causlng him to become aware of double
vision, which would interfere with his ability
to ludge distances and depth and account forthe numerous accidents and misjudgements he
has described in his letter, undated, but addressed to the Veterans Review Board.
In answer to your speclfic questions not already covered:
(B) ....
(C) His ocular condition alone should not prevent him from working a normal eight
hour day but if he found the diplopia
troublesome, he would eliminate thls
problem by covering hls left eye. His ocular condition has obvlously been stable for many years and he managed to work successfully as a Chartered Loss
Adjustor until last year, so I do not believe his ocular condition has been a
major factor preventing hlm from continuing to work.
(F) . . . . ' l In the light of this evidence it cannot, in my
view, be argued successfully that the Tribunal was gullty of
any error of law in faillng to order some further medlcal assessment. 8 . Retrospectivity of Tables 1 and 9, loss of
: Section of [the Guide I and Sectlon 27 (1) (2) of V.E.A. from 12.12.72 to 19.4.84.
Ground (i) Mrs Balmford erred in that she did not
deal with the submission regarding
retrospectivity of the claim for
Central Retinal Branch Thrombosis to the date of the Initial claim to 12
December 1972. This matter was also dealt with by the Veterans' Review Board and was similarly contained in the submission before MrS Balmford.
Here Mr williams argued that his penslon, so far as
it relates to his left eye, having been assessed at its proper level, should then be backdated to 12 December 1972
when he lodged his flrst claim, whlch was refused.
He based this argument on a note which he has found
on a departmental file of that tlme. The note is one apparently recommendlng that Mr Willlam's medical expenses should be paid in spite of the failure of his particular pension claim.
The handwritten note is not easy to read, but ~t
seems to say,
"Recommend approval of payment Reg 6 4 .
relationship thrombosis retinal artery and . . . . . . . . . . . . for reference re Buerger's disease".
Mr Williams says that this reveals an admission of
some connexion between his Buerger's disease (which causes obstruction and clotting of the smaller arteries and veins), which has always been accepted as a war-related disabillty, and the damage to his eye. Had the Department informed hlm of this admission he would have pursued an appeal at the time. He ought now, in fairness, have his pension backdated to that time.
Without attempting to deal with the significance of
this cryptic note, counsel for the respondent has submitted
that the legislation does not permit such a course to be taken. He referred to ss.l77(2)(a) and 157(2)(a) of the Act. Those sub-sections and paragraphs read as follows:
"177.(2) Where the Administrative Appeals
Tribunal, upon application made under subsection 175(1) for a review of a decision
of the Commission that has been affirmed orvaried by a decision of the Board or a
decision of the Board made in substltution for
a decision of the Commission, grants a pension (not being a service pension) or attendant allowance, or increases the rate at which a pension (not being a service pension) is to be
paid, the Trlbunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made withln 3 months after service on the appllcant of a document setting out
the terms of that decision of the Board - from a date not earlier than
the earliest date as from which the
Board could, if it had granted a
pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate,
as the case may be; or . . . . ' l
"157.(2) Where the Board, upon its revlew of a decision of the Commission sets aside that declsion and substitutes another decision for
it, or varies that decislon:
(a)
if the effect of the substituted declsion, or the varied declsion, as the case may be, is to grant a pension or attendant allowance to a person, the Board may fix, as the
date from whlch the Board's declsion is to operate:
(i)
if the person made application for the review within 3 months after service on the person of a copy of the Commission's decision - a date not earlier
than the earliest date as from which the Commisslon could, if
it had not refused to grant a
pension or attendant allowance,
as the case may be, to the
person, have approved payment
of a penslon or of attendant
allowance to the person; or
(ii) in any other case - a date not more than 6 months before the
date on which the person's
appllcation for review of the
Commlssion's decision was
received at an offlce of the
Department in Australia ..."
Those provisions show that the applicant received from the Tribunal the greatest degree of retrospectivity which the Act allows the VRB, and thus the Tribunal, to decree. Indeed MC Williams based hls argument on this Issue rather on the injustice he alleged than on any perceived
error of law.
9. Re-instatement of Pension from 60% to 80% per Sub-section 7(3) of V.E.A. (Transitional Act) rrom 5.10.81 to date.
Ground (f) Mrs Balmford erred in he r interpretatlon of sub-section 7 ( 3 ) of the Transitional Act in that she did
not allow retrospectivity of the decision of the Veterans' Review Board to be effective as from 14 Nay 1985, ie, prior to 22 May 1985, this being the commencing date of the Transitional Act. She incorrectly therefore made her assessment at 60 percent whereas it
should have been 80 percent of the General Rate.
Under this heading the applicant claimed that h i s pension should not have been reduced by the Trlbunal below the 80% of the general rate allowed by the Veterans' Review Board.
e
- 16 -
He relied upon sub-s.7(3) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 ('the Transitional Provisions Act'), which reads as follows:
"7(3) The Commission, the Board or the Administrative Appeals Tribunal shall not, in the course of re-assessing the rate at which a pension to which this sub-section applies, determine, as the degree of Incapacity of the
person to whom that pension is payable, a percentage that is less than the percentage of the maximum general rate of pension constituted by the rate at which that penslon was, immediately before the commencing date, paid unless the Commlssion, the Board or the Administrative Appeals Tribunal as the case may be, is satisfied -
(a) that the incapacity of that person has decreased slnce the rate of that pension was previously assessed o r
last assessed; or (b) that the previous assessment or last
assessment would not have been made
but for a false statement o r misrepresentatlon of a person."
It is not suggested that either of paragraphs (a) or (b) apply in the applicant's case.
The dates relevant to this submission are:
17 September 1985 Commission increased pension rate
to 60%
14 November 1985 Application lodged to review 1973 decision 28 November 1986 Decision by VRB increasing rate to
80%, to take effect as from 14 May
1985
2 2 May 1986 Transitlonal Provisions Act comes into force applicant argues that the word 'paid' in sub-s.7(3) should be read as if it were 'payable', and that the retrospective operation of the VRB order meant that, at
The
the time the Transitional Provisions Act came into force, he was entltled to a pension at the rate of 80% which could not later be reduced.
The Tribunal rejected this argument in the
following terms:
"The decision of the VRB assessing Mr. Williams' pension at eighty per cent was made on 28 November 1986, that is, after the commenclng date, albeit with effect from 14 May 1985, that is before the commencing date. However, I think that the effect of the word "paid" in sub-section 7(3) must be that the provision can only relate to what was actually happening immediately before the commencing date, and not to the potential effects of a later decision made with retrospective effect. Had Parliament intended that no pension under Part I1 of the Act should ever be reduced on a re-assessment except because of decrease in incapacity or false statement, it could have
said s o . "
However, rather than rely upon the decislon of the
Tribunal on this point, counsel for the respondent argued thebroader issue that sub-s.7(3) could not be taken as applying
Trlbunal - which is required to hear the matter afresh and to a rate which has been made the subject of appeal to the back-date its decision to that which the VRB fixed or ought to have fixed. Sub-s.7(3) is clearly designed to preserve pensions which had been properly assessed uslng earlier
guidelines under a previous Act (such as the decision of 17 September 1985), not to prevent any existing pensions being
reduced a s the result of an appellate process which applied
assessment principles appropriate to the tlme of the earller
decision when the Act was already in force and which, in this case, were agreed to be those set out in the Guide.
I think this submission is clearly correct. Such
an interpretation is consistent with the obvious purpose of
the provision - to protect entitlements achieved under previous legislation - and does not do violence to the appeal processes provided elsewhere in the legislative scheme.
I prefer not to express any view on the
construction of the word "paid" adopted by the Tribunal In the passage quoted above, since I have not heard any developed argument on the point.
For all the reasons I have glven, I am unable to
find any error of law in the decision of the Tribunal and the application must be dismissed wl'th costs.
I certify that this and the
seventeen (17) preceding pages
are a true and accurate copy ofthe Reasons for Judgment herein of
The SFgn M r Justice Woodward Associate
Dated: 5 August 1988 Applicant appeared in person.
Counsel for the Respondent: Mr G. Nettle
Solicitors for the Respondent: Australian Government Sollcitor Date of hearing: 18 July 1988
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