FEDERAL COURT OF AUSTRALIA Repatriation Commission v Applebee [2000] FCA 1246 VETERANS' AFFAIRS – veterans' entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether glaucoma is a sequela of veteran's accepted war-caused cerebrovascular disease – whether Guide to Assessment of Rate of Veterans' Pensions correctly applied – whether inconsistency between general instructions to Guide and chapter of Guide. Veterans' Entitlement Act 1986 (Cth) – ss 120(4), 120B(3) REPATRIATION COMMISSION v ALBERT GEORGE APPLEBEE VG 344 of 1998 WEINBERG J 6 SEPTEMBER 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 344 OF 1998 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: ALBERT GEORGE APPLEBEE RESPONDENT JUDGE: WEINBERG J DATE OF ORDER: 6 SEPTEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The Administrative Appeals Tribunal's decision made on 29 June 1998 that "the condition of bilateral open angle glaucoma is a sequela of Mr Applebee's accepted war-caused cerebrovascular disease" be set aside. 3. The Administrative Appeals Tribunal's decision made on 29 June 1998 be otherwise affirmed. 4. There be no order as to 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 VG 344 OF 1998 BETWEEN: REPATRIATION COMMISSION APPLICANT AND: ALBERT GEORGE APPLEBEE RESPONDENT JUDGE: WEINBERG J DATE: 6 SEPTEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from part of a decision of the Veterans' Appeal Division of the Administrative Appeals Tribunal ("the AAT") made on 29 June 1998. 2 By that decision the AAT varied the decision of the Repatriation Commission ("the Commission") and substituted a decision that the condition of bilateral open angle glaucoma is a sequela of the respondent, Mr Applebee's, accepted war-caused cerebrovascular disease ("CVD"), and increased his rate of pension to 70% of the General Rate from 11 April 1996 and 80% of the General Rate from 23 April 1996. 3 The effect of the AAT's decision was to render the Commonwealth liable to pay pension and provide medical treatment to Mr Applebee in respect of his incapacity from three injuries or diseases accepted as war-caused within s 9 of the Veterans' Entitlement Act 1986 (Cth) ("the VE Act") plus his glaucoma, which has not been determined to be a war-caused injury or disease. 4 The errors of law said by the applicant to have been made by the AAT involve the following general issues: (i) the proper construction of the Guide to the Assessment of the Rates of Veterans' Pensions ("the Guide"); and (ii) the interaction between the Guide and ss 120(4) and 120B(3) of the VE Act. 5 More specifically, the grounds of appeal raised by the applicant were as follows: 1. In concluding that Mr Applebee's glaucoma was a sequela of his war-caused CVD, the AAT failed to conform to the requirements of the VE Act and the Guide which required that: (i) the AAT first determine whether Mr Applebee's glaucoma was war-caused; and (ii) only determine that glaucoma was war-caused if the contention that glaucoma was probably connected to war service was upheld by the relevant Statement of Principles (SoP). 2. The AAT erred in law in concluding that there was an inconsistency between the terms of pages 8-9 of the Guide and Chapter 5 of the Guide and that inconsistency justified the AAT in finding that glaucoma was a sequela of Mr Applebee's CVD. The relevant legislative framework 6 Section 9 of the VE Act prescribes the circumstances in which a veteran's injury or disease should be taken to be "war-caused". That section relevantly provides: "(1) Subject to this section, 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; …" 7 Section 120(4) of the VE Act provides: "(4) 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. Note: This subsection is affected by section 120B." (emphasis added) 8 Section 120B(3) relevantly provides: "120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles … (3) 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); … … that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service." 9 Section 196B of the VE Act sets out the functions of the Repatriation Medical Authority ("the Authority"), a body established pursuant to s 196A of the Act. Section 196B relevantly provides: "(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A). Note 3: For factor related to service see subsection (14). …" 10 Section 19(5) of the VE Act directs the Commission to assess, under ss 22, 23, 24, 25, 27 or 30, the rate or rates at which pension is payable once the Commission has determined that an injury or disease is war-caused under s 19(3)(b). Section 19(7) specifies that the Commission is to assess a veteran's combined incapacity from all war-caused injuries and diseases. 11 Section 22(2) of the VE Act provides that the rate at which pension is payable to a veteran (which is not otherwise covered by ss 23, 24 or 25) is determined by reference to the degree of the veteran's incapacity determined in accordance with s 21A. 12 Section 21A relevantly provides: "21A (1) The Commission shall…determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions. (emphasis added) …" 13 Additionally, s 29(4) of the VE Act provides: "(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions." (emphasis added) 14 On 21 June 1995 a Statement of Principles in relation to Open-Angle Glaucoma was determined by the Authority and relevantly states: "1. …the factor that must exist before it can be said that, on the balance of probabilities, open-angle glaucoma or death from open-angle glaucoma is connected with the circumstances of that [eligible war] service, is: (a) inability to obtain appropriate clinical management for the open-angle glaucoma. … 3. The factor set out in paragraph 1(a) applies only where: (a) the person's open-angle glaucoma developed before a period, or part of a period, of service to which the factor related;… …" 15 In the "How to Use This Guide" section to the Guide, the following passages appear at p 8-9: "Conditions and their sequelae Only the clinical features of an accepted condition may be taken into account in making an assessment. If the accepted condition causes some other distinct and diagnosable condition (sequela), the symptoms of the sequela cannot be taken into account when assessing the original accepted condition. Sequelae can only be assessed when they have themselves been separately determined to be war-caused or defence-caused. … Applying the instructions To the extent of any inconsistency between an instruction in "How to Use This Guide" and a specific instruction concerning a particular matter in another chapter of this Guide, the specific instruction in that other chapter is to apply to that particular matter." (emphasis added) The factual background 16 On 9 November 1994 the Commission decided that Mr Applebee was entitled to payment of pension at 20% of the General Rate in respect of his incapacity from CVD. Mr Applebee lodged an application for increase of that rate on 10 July 1996, as well as a claim under s 14 of the VE Act for pension for four conditions described as "breathing", "hearing", "knee" and "eyesight". 17 On 3 September 1996, the Commission determined that two of the conditions claimed by Mr Applebee, osteoarthrosis of the left knee and bilateral sensorineural hearing loss, were war-caused and increased Mr Applebee's rate of pension to 40% of the General Rate, effective from 11 April 1996. At the same time, the Commission determined that Mr Applebee's bilateral presbyopia and glaucoma were not war-caused. 18 The Veterans' Review Board on 19 August 1997 affirmed the decision that the glaucoma was not war-caused, but increased Mr Applebee's rate of pension to 50% of the General Rate, effective from 11 April 1996. 19 In its decision on 29 June 1998, the AAT found that Mr Applebee was suffering from glaucoma and inferior left sided hemianopia which were secondary to his accepted disability of CVD. It found that Mr Applebee had an impairment of 25 points under the relevant table of the Guide, and that this was the appropriate rating for CVD, having taken into account his loss of visual function. The AAT adopted impairment ratings for bilateral sensorineural hearing loss and osteoarthrosis and combined those ratings to arrive at the rates of pension of 70% of the General Rate from 11 April 1996 and 80% of the General Rate from 23 April 1996. The applicant's case 20 The applicant drew to the Court's attention the reasoning adopted by the AAT in support of its contention that the AAT had not had regard to the proper construction of the Guide. 21 The AAT had acknowledged that the introduction of the Guide prevented it from taking into account the sequela of an accepted condition when assessing incapacity under the Guide, until that condition had been separately determined to be war-caused within s 9 of the VE Act. The AAT accepted that s 120B(3) and the terms of the SoP would prevent it from finding that Mr Applebee's glaucoma was a war-caused disease. It was accepted by both parties that the glaucoma could not satisfy the requirement of the SoP. The effect of these matters was that any symptoms of glaucoma suffered by Mr Applebee could not be taken into account in assessing the rate of pension payable by reason of the CVD. 22 The AAT also noted the instructions in the Guide to the effect that where any specific instructions in another chapter of the Guide were given, then to the extent of any inconsistency those specific instructions were to prevail over the general instructions in the introduction to the Guide. The AAT said in its reasons for decision that Chapter 5 of the Guide contained specific instructions for assessing neurological impairment (such as CVD) which were inconsistent with the general instructions about sequelae. 23 In its reasons for decision the AAT referred to the introduction to Table 5.5 of the Guide. The applicant submitted that in determining that there existed an inconsistency between the instructions about sequelae and Chapter 5 of the Guide, the AAT must have been referring to that table. 24 Table 5.5 relevantly provides: "Functional Loss Table 5.5 LOSS OF NEUROLOGICAL FUNCTION: CRANIAL NERVES Cranial Function Assessment to Complete Unilateral Loss Complete Bilateral Loss Nerve be made by application of: … II Vision Chapter 8 III, IV, VI Eye movement Chapter 8 …" 25 The AAT stated in its reasons: "The second function of the cranial nerve referred to in Table 5.5 is vision and the Table directs that assessment of loss of the visual function is to be made by application of Chapter 8 of [the Guide]." 26 The applicant submitted that there is nothing in Table 5.5 which is inconsistent with the general instructions relating to sequelae. In support of this contention, the applicant submitted the following: (i) the introduction to Chapter 5 of the Guide directs that neurological impairment is measured by reference to multiple functions. Table 5.5 deals with assessment where one or other of the cranial nerves is affected by a neurological impairment; (ii) where the functional loss is visual and is caused by impairment of cranial nerve II, the second item in Table 5.5 directs that the loss be assessed under Chapter 8; (iii) there is no inconsistency between Table 5.5 (or any other part of Chapter 5) and the general instruction relating to sequelae; (iv) Table 5.5 makes no reference to the effects of glaucoma; it refers to functional loss resulting from an impaired cranial nerve; (v) Chapter 5 accepts the possibility that CVD may manifest not as glaucoma, but as loss of visual function; and (vi) Chapter 5 does not implicate cranial nerve II in the development of glaucoma. Nothing in Chapter 5 justified the conclusion that glaucoma is a consequence of CVD and is to be included when assessing incapacity from CVD. 27 The applicant submitted that there being no inconsistency between the general instruction regarding conditions and their sequelae and the specific instructions in Chapter 5, the AAT was required to follow the general instruction and determine separately that the glaucoma was war-caused or defence-caused before it determined that it was a sequela of CVD. Nothing in Chapter 5, it was submitted, gave rise to an inconsistency allowing the AAT to disregard the process set out in the general instructions. The AAT could not, on the basis of the instructions in Chapter 5, find that the glaucoma was a sequela of CVD. The AAT's decision was thereby vitiated by error of law. 28 The applicant did not appeal from the second decision of the AAT, namely that Mr Applebee's pension be increased to 70% and 80% of the General Rate. The applicant conceded that the AAT's alleged error of law in respect of its finding that glaucoma is a sequela of CVD could not be shown to have affected the second decision given that the evidence before the AAT was sufficient to have allowed the AAT to conclude that Mr Applebee's cranial nerve II was affected by his CVD. That justified an impairment rating of 25 points under Table 8.1.2 of the Guide for "Left inferior quadrant hemianopia". 29 In other words, the applicant submitted that although it was not open to the AAT to conclude that glaucoma is a sequela of Mr Applebee's CVD, it was open to it to adopt the assessment of the rate of his pension, reflected in the second decision of the AAT. The respondent's case 30 In response to the applicant's submission that the AAT had erred in finding that there was an inconsistency between the general instructions in the Guide and another specific instruction in Chapter 5, the respondent submitted that such an inconsistency did, in fact, arise between the two. In support of this submission, the respondent drew attention to s 5D(2) of the VE Act which relevantly provides: "(2) In this Act, unless the contrary intention appears: (a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; … is a reference to the effects of that injury or disease and not a reference to the injury or disease itself. Note: for war-caused injury and war-caused disease see section 9." 31 The respondent submitted that although the AAT was unable to take into account, when assessing Mr Applebee's CVD, the accepted war-caused disease, glaucoma as a sequela to the CVD, it was entitled, by virtue of s 5D(2), to take into account the effects of the disease, which were (a) loss of vision and (b) glaucoma. It was submitted further that the effects, or symptoms, of glaucoma is a loss caused by the cranial nerve deficiency. Given this, the AAT was required to go to Chapter 8 of the Guide which deals with such loss, and to apply Table 8.1.2 to the assessment of Mr Applebee's CVD. As it was required to go through this process, it was submitted, the general instructions did not apply. That is, if there is a table which specifically applies to the effect of the condition that is being assessed, the inconsistency between the general instructions and another chapter arises by implication, and the specific instructions are to prevail. 32 The respondent accepted that any progress of the loss of field of vision by the applicant through the glaucoma could not be assessed by the AAT as this would have been a manifestation of the glaucoma which is not, and, because of the operation of s 120B and the terms of the relevant SoP, is never likely to be, an accepted war-caused disability. 33 Although the respondent submitted that the AAT had approached the question of the effect of the glaucoma in the manner outlined above, there was no argument, as I understood the submissions, advanced in support of the actual finding by the AAT that "the condition of bilateral open angle glaucoma is a sequela of Mr Applebee's accepted war-caused cerebrovascular disease". In his written submissions the respondent asserted, "…the Tribunal correctly found glaucoma was a sequela of Mr Applebee's accepted disability". However during the course of argument that submission was effectively abandoned, and it was submitted instead, that glaucoma was an effect of the CVD, which could properly be taken into account, although it could not be characterised as a sequela in itself for the purposes of assessment of the rate of pension. Findings 34 In its reasons for decision, the AAT said at par 19: "Mr Nyhof (who appeared on behalf of the Commission) submitted that Mr Applebee was not entitled to have glaucoma accepted as a sequelae [sic] of his cerebrovascular disease unless the glaucoma satisfied the relevant SoP for glaucoma being instrument No. 242 of 1995. In fact Mr Applebee's glaucoma would not satisfy that SoP because the only factor which is regarded as satisfying the reasonable satisfaction test in respect of glaucoma is inability to obtain clinical management for open angle glaucoma where the open angle glaucoma developed before a period of service to which the factor related. However there is no dispute about the medical evidence that the glaucoma results from the accepted war-caused cerebrovascular disease. In those circumstances we consider that the instructions in the Introduction to the Guide and in Chapter 5 of the Guide make it clear that loss of visual function resulting from war-caused cerebrovascular disease is assessable as a sequela of that cerebrovascular disease." (emphasis added) 35 The above passage indicates that in arriving at its decision the AAT drew a distinction between loss of visual function, on the one hand, and glaucoma, on the other, when determining assessable sequelae of the CVD. It then correctly applied Table 8.1.2, in respect of Mr Applebee's loss of vision. In this respect it can not be said that the AAT fell into error. 36 The respondent conceded during the course of argument that owing to the operation of ss 120(4) and 120B(3) it was not open to the AAT to find that Mr Applebee's glaucoma was a war-caused disease within s 9 of the VE Act. Unless a specific instruction in the Guide directs otherwise, then the glaucoma can not be taken into account in assessing the rate of pension payable. 37 I accept the applicant's submission that as no reference is made to glaucoma in Table 5.5, and nothing in Chapter 5 suggests that any deficiency in cranial nerve II is responsible for glaucoma, no inconsistency arises between the general instructions regarding sequelae and Chapter 5. The general instructions to the Guide must therefore be applicable. It follows that the glaucoma must be separately determined to be war-caused in order for it to be considered a sequela of the accepted condition. As the glaucoma is the subject of a SoP which it could not satisfy, then it could not be determined to be a sequela of the CVD. The error by the AAT arises by virtue of the fact that the AAT went further than was permitted in finding that the glaucoma was a sequela of the CVD. 38 I accept that the AAT erred on this basis and the appeal must be allowed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 6 September 2000 Counsel for the Applicant: Mr P.J. Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D. De Marchi Solicitor for the Respondent: Dr Marchi and Associates Date of Hearing: 31 July 2000 Date of Judgment: 6 September 2000