FEDERAL COURT OF AUSTRALIA Kawicki v Repatriation Commission [2014] FCA 1147 Citation: Kawicki v Repatriation Commission [2014] FCA 1147 Appeal from: Kawicki and Repatriation Commission [2014] AATA 207 Parties: TADEUSZ KAWICKI v REPATRIATION COMMISSION File number(s): NSD 445 of 2014 Judge(s): BUCHANAN J Date of judgment: 30 October 2014 Catchwords: DEFENCE AND WAR – appeal from a decision of the Administrative Appeals Tribunal ("AAT") – where applicant found to be entitled to a general rate but not a special rate of pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act") – whether applicant entitled to special rate or intermediate rate of pension – whether applicant satisfies s 24(1)(c) of the Act in that his incapacity to work was caused by defence-caused injuries alone – whether increase to the general rate of pension should take effect from an earlier date than that decided by the AAT Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Veterans' Entitlements Act 1986 (Cth), ss 19(5B), 19(5C), 19(5D), 19(6), 21A, 22, 22(2), 23, 23(1)(d), 24, 24(1)(b), 24(1)(c), 28, 68, 70, 73 Cases cited: Kawicki and Repatriation Commission [2014] AATA 207 Smith v Repatriation Commission (2014) 220 FCR 452 Date of hearing: 8 September 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 94 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms RM Henderson Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 445 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: TADEUSZ KAWICKI Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: BUCHANAN J DATE OF ORDER: 30 October 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be upheld. 2. The decision of the Administrative Appeals Tribunal ("AAT") dated 10 April 2014 be set aside. 3. The matter be remitted to the AAT to be decided according to law upon consideration of these reasons for judgment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 445 of 2014 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: TADEUSZ KAWICKI Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: BUCHANAN J DATE: 30 October 2014 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 On 24 September 2007, the applicant (Mr Kawicki) applied for a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"). A series of decisions have been made, arising from that application. The last decision is that of the Administration Appeals Tribunal ("the AAT"). It is from that decision that the present "appeal" comes to this Court. 2 Although called an appeal, the proceedings are in the original jurisdiction of the Court. They arise under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal must be "on a question of law". 3 Before I deal with the questions of law which are said to arise for consideration, some background is set out. First, a brief outline of the legislative scheme is necessary. Secondly, some idea of Mr Kawicki's employment circumstances, and his claimed disabilities, will be relevant. Thirdly, some procedural history will be helpful. Fourthly, the reasoning of the AAT needs examination. Finally, I will explain why I have concluded that the AAT did make an error of law and why the appeal therefore succeeds in part. The legislative scheme 4 The Act provides for the payment of pensions at various rates for military service veterans who are disabled by their service, provided certain conditions are met. The two rates of pension which are immediately relevant to the present case are the general rate of pension and the special rate of pension. It will be necessary to refer also to the intermediate rate of pension. Each of the intermediate rate of pension and the special rate of pension are higher than the general rate of pension. 5 Mr Kawicki served in the Royal Australian Air Force from 5 August 1969 to 27 June 1975. Section 68 of the Act deemed his service from 7 December 1972 to be "defence service" and s 70 of the Act made the Commonwealth liable to pay a pension for incapacity which was "defence-caused". For that purpose, the provisions of ss 22 and 24 (which deal with the general rate of pension and the special rate of pension) apply as though a reference to "war-caused injury" is a reference to "defence-caused injury" (s 73). 6 Assessment of whether either of those two rates of pension applies required a decision about whether a pension was payable at some time during the assessment period (s 19(5C)) and, if more than one general rate of pension was payable, which was the most recent payable (s 19(6)). 7 In the present case, the assessment period was treated as falling between the date three months before the application was made (to reflect a discretion to back-date a pension), i.e. 24 June 2007 and the date of the relevant decision. Accordingly, so far as the deliberations of the AAT are concerned, the assessment period is from 24 June 2007 to the date of the AAT decision on 10 April 2014. 8 I shall refer later to the procedural history which gives some explanation for the passage of that period of time. The important point to note at present is that the assessment to be made related to the whole of the assessment period. 9 Entitlement to a pension at the general rate or at the special rate is governed by ss 22 and 24 of the Act. The general rate of pension does not apply if the special rate applies. 10 Section 21A first requires an assessment of the degree of incapacity arising from defence-caused injury or disease, in increments of 10%, but not exceeding 100%. In a case such as Mr Kawicki (who is less than 65 years old), if a general rate of pension is payable, it is payable at a percentage of the maximum rate which reflects the degree of incapacity established under s 21A (s 22(2)). 11 Entitlement to the special rate of pension requires at least 70% incapacity, as well as other conditions to be met. Those other conditions are important for the present case. 12 First, the veteran must be "totally and permanently" incapacitated (i.e. not capable of working for more than a total of 8 hours per week) by the defence-caused injury alone (s 24(1)(b)). Secondly, the veteran must, by reason of defence-caused injuries alone, be prevented from "continuing to undertake remunerative work that the veteran was undertaking" and for that reason be suffering a loss of earnings that would not otherwise be suffered (s 24(1)(c)). It is this last condition which is most relevant in the present case. 13 Section 28 of the Act directs what matters are relevant to an assessment of whether a person can undertake remunerative work: 28 Capacity to undertake remunerative work In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only: (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). 14 These directions are not, in terms, focussed on the test in s 24(1)(c) but they sufficiently indicate that the field of inquiry is not confined to the reasons for having ceased a particular job, or specific type of work. Mr Kawicki's employment circumstances 15 During his service with the RAAF Mr Kawicki qualified as an electrician. During that service he also suffered injuries to his left wrist and left ankle which the AAT decided (on 19 March 2010) have led to osteoarthritis in each joint which is defence-caused. At the same time (19 March 2010) the AAT decided that osteoarthritis of Mr Kawicki's right wrist was not defence-caused. 16 The AAT, in the decision now under challenge, recorded the following matters: 5. After his discharge in 1975, Mr Kawicki worked as an electrician. He worked for a number of companies in the mining, construction and elevator industries and, from 1995, was self-employed. In about 1998, he started working as an electrician at Sydney Airport. As part of his employment, he was required to work in the tunnels underneath the airport. Around this time, Mr Kawicki reported experiencing temporary losses of consciousness. On one occasion, whilst working alone in one of the tunnels, he gave himself two severe electric shocks as a result of such a loss of consciousness. This led Mr Kawicki to conclude that it was too dangerous for him to continue working at the Airport. He therefore resigned although without revealing the reason for doing so because he was worried about this affecting his future employment prospects. 6. Mr Kawicki was referred to a Neurologist at the Prince of Wales Hospital who diagnosed Mr Kawicki as suffering from Blip Syndrome. A 'Blip' has been described as a very brief sensation of impending loss of consciousness which is momentary and can, when it first occurs, be frightening. It is not apparently associated with any physical impairment and the causes of the syndrome and mechanism for the transitory attack is uncertain: James W Lance, "Transient sensations of impending loss of consciousness: the 'Blip' syndrome", (1996) 60 Journal of Neurology, Neurosurgery, and Psychiatry 437-438. 7. After leaving his job at the airport, Mr Kawicki was unable to find alternative employment. In August 1999, he applied for, and was granted, the disability support pension (DSP) although he continued doing minor casual work until 2001. He has not worked since. The DSP appears to have been granted by Centrelink based on Mr Kawicki having been diagnosed with the Blip Syndrome. This was the condition referred to in Treating Doctors' Reports provided to Centrelink in 1999, and was the focus of the written report dated 8 June 1999 prepared by Dr Kerri Fogg of Health Services Australia who assessed Mr Kawicki as having an impairment rating of 30 on the Intermittent Table. Dr Fogg stated: Although the customer appears very keen to work it is very hard to imagine any occupation compatible with recurrent, transient periods of altered consciousness. Mr Kawicki states that he discussed his other conditions, in particular his left wrist and left ankle conditions, with the doctor but she ignored these in her report. He acknowledged that these were not mentioned in the Treating Doctors' Reports but said that his treating doctors completed these reports in a very short time without proper consideration being given to any conditions other than the Blip Syndrome. 17 Dr Fogg's record in 1999, that Mr Kawicki suffered from BLIP Syndrome, was the foundation for the grant to Mr Kawicki of a disability support pension. As is obvious from the extracts of the AAT decision set out above, the original diagnosis arose from incidents around 1998, which caused Mr Kawicki to resign from particular employment after he had suffered two electrical shocks resulting from reported "temporary losses of consciousness". 18 Dr Fogg's report recorded Mr Kawicki's symptoms a little differently in parts, as follows: Gradual ~ 18 months ago onset of periods of "altered consciousness" ie. periods of loss of memory or automatic behaviour. … 19 She recorded that subsequent tests found no abnormality but that a neurologist diagnosed BLIP syndrome. 20 Dr Fogg however also recorded: This 49-year-old man had worked all his adulthood as an electrician, stopping 15 months ago after 2 nearly fatal electrocutions. He was fully investigated by neurologists who diagnosed a BLIP Syndrome, a neurological disorder characterised by multiple, momentary losses of consciousness. This condition scores a rating of 30 on the Intermittent Table. Although the customer appears very keen to work it is very hard to imagine any occupation compatible with recurrent, transient periods of altered consciousness. A CRS assessment may be helpful. I have discussed the condition with Dr Bennett who will speak with the customer about his continued driving. (Emphasis added.) 21 It appears, therefore, to have been accepted that Mr Kawicki suffered momentary losses of consciousness, as well as memory loss. 22 Dr Bennett was Mr Kawicki's GP. I will refer in due course to the evidence given to the AAT by Mr Kawicki's current GP, Dr Carran. 23 Dr Fogg's assessment apparently also took into account a certificate from Dr Bennett, and another from Dr Denis Duncan. Dr Duncan diagnosed Mr Kawicki's clinical features as: episodic momentary loss of awareness. 24 Dr Duncan endorsed his report as follows: This patient is unknown to me. The report is compiled from the notes of Dr. D. Bennett and the patient himself. 25 There does not appear to have been any later diagnosis of BLIP syndrome and it does not appear that Dr Fogg made a separate diagnosis. Rather, she appeared to rely upon the diagnosis made by the neurologists at Prince of Wales Hospital, Sydney and information given to her by Dr Bennett and she provided an assessment of whether Mr Kawicki's claim for a disability support pension should be accepted on that basis. Dr Fogg evidently changed the assessment which had earlier been made by Centrelink, and explained why as follows: Why did you change the type of assessment? This man's condition is permanent and stable. His medical condition appears incompatible with open market employment. 26 In the present proceedings a good deal of weight was placed, by the respondent, on those remarks as evidence of some form of final and continuing diagnosis relevant to the assessment required to be made by the AAT, but in my view the assessment then made, for a different purpose, could not be given the weight attributed to it, not least because it has apparently never been reviewed and has no apparent contemporaneous support. So to observe does not intrude into the role, or the fact-finding function, of the AAT. The AAT did not give those remarks the apparent significance urged in submissions in the present case. 27 As the AAT recorded, Mr Kawicki has not worked since 2001. Nevertheless, the assessment required by s 24 of the Act was one to be made by reference to the assessment period; not one which simply made an assessment of why he stopped working in a particular job in 1998 (or other casual jobs in 2001). Procedural history 28 Some of the findings made by earlier decision-makers must be viewed with caution in light of the AAT decision on 19 March 2010. Nevertheless, the procedural history is relevant to a suggestion made by the respondent in the present case that Mr Kawicki bore responsibility before the AAT of showing why the diagnosis of BLIP Syndrome did not represent a reason why he could not continue to undertake remunerative work, and that he should have organised further neurological tests on his own account if that was his position. It is relevant to know whether the procedural history, or the terms of earlier decisions, should have alerted him to that suggested necessity. 29 In a decision of 12 November 2007, a delegate of the Repatriation Commission decided that Mr Kawicki had no entitlement arising from any osteoarthritis in his left wrist or injury to his right wrist or to his left ankle. The decision was, in substance, confirmed by a decision of the Veterans' Review Board on 10 July 2008. Neither decision referred to BLIP Syndrome. I infer that Mr Kawicki did not mention it as the Veterans' Review Board recorded: 29. The applicant told the Board that he ceased work in 1999 due to his loss of hearing. He said that his hearing loss was of such severity that it caused a safety breach in the workplace. He felt he had to cease work. 30 Mr Kawicki sought a review by the AAT. At the AAT the parties reached agreement about some important matters. The agreement, relevantly, led to a substituted decision on 19 March 2010 in the following terms: Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975: 1. The Tribunal sets aside the decision under review, and substitutes a decision that: i. Mr Kawicki suffers from osteoarthritis of the left wrist, osteoarthritis of the right wrist, and osteoarthritis of the left ankle; … iii. Mr Kawicki's osteoarthritis of the left wrist and osteoarthritis of the left ankle are defence-caused; iv. Mr Kawicki's osteoarthritis of the right wrist is not defence-caused; v. The date of effect of the substituted decision in respect of the left wrist and osteoarthritis of the left ankle is 24 June 2007; and vi. The matter be remitted to the Repatriation Commission for assessment of the rate of pension. 31 Prior to that AAT decision, a report had been obtained by the Department of Veterans' Affairs from Dr David Millons on 25 May 2009. Dr Millons, obviously relying on Mr Kawicki, recorded: He stopped work in 1998 because of a collection of problems. He was having problems with his left ankle, both wrists and some psychological problems. It appears that he may have suffered a series of electrical shocks along the way. He states that all of those problems impacted on his work capacity. 32 When a new decision was made, as directed by the AAT, a delegate made an assessment of the general rate of pension at two dates – 24 June 2007 (60% incapacity) and 19 March 2010 (90% incapacity). The delegate then assessed whether the special rate was payable from the latter date. The delegate said: Mr Kawicki has advised that he has not been in paid employment since the late 1990's. A report by Dr David Millons dated 26 May 2009 indicates that a combination of factors impacted on his work capacity and led him to cease work. As well as his accepted disabilities these factors included his osteoarthritis of the right wrist, psychological problems and possibly he may have suffered a series of electric shocks. There is no medical evidence that the effects of his accepted disabilities would have prevented him from continuing to work. Indeed, the assessment of his pension at 60% effective from 24 June 2007 indicates that even at that stage his accepted disabilities were not severe enough to prevent him from working. Having noted the implication of other factors apart from Mr Kawicki's accepted disabilities, the medical and lifestyle evidence from 2007 that indicates that his accepted disabilities would not have prevented him from working at that time as well as his age and length of time out of the workforce at the time of the current assessment, I have decided that Mr Kawicki is not eligible for pension at either the Special or Intermediate Rate. 33 This assessment was, in part, to the effect that s 24(1)(b) was not satisfied. There was no mention of BLIP Syndrome. 34 Again, the Veterans' Review Board was asked to review the delegate's decision. It gave two decisions. 35 In the first decision, on 5 April 2011, the Board decided to defer consideration of entitlement to the special rate, while further information was obtained. Part of the Board's reasons related to the question of the reason for ceasing work and Mr Kawicki's work capacity. The Board said: Special rate application 35. The submission is that the applicant is eligible for pension at the Special rate. Given the Board's decision to adjourn the assessment matter, the Board defers making a decision on Special rate pending receipt of the material on the general rate of assessment. Nonetheless, the following notes are made based on Mr Latimore's submissions, the applicant's oral evidence and the other available material to date. 36. The submission is that the applicant, an electrician by trade, has not worked as an electrician since 1998. According to Mr Latimore, there were a number of reasons why he left his job at that stage and they were mostly connected with his service accepted conditions. "Mostly" because there was some impact from a memory problem at the time. That work as an electrician, however, was not the last remunerative work undertaken by the applicant which should be considered for the purposes of the Special rate claim. After 1998, the applicant undertook a range of part-time jobs doing work as a labourer or a gardener and he ceased that work completely in 2002. He ceased that last paid work on the basis solely of his accepted service conditions. 37. In oral evidence the applicant stated that he could not remember how many hours he worked in those part-time jobs. On average he guessed it would probably have been around one day each week but some weeks there was nothing and other weeks a few days in a row. He was always paid cash in hand for the work he undertook and there was not enough to have to fill out taxation returns each year. He also did some voluntary work for the RSL but "not a great deal". 38. The applicant stated further that his last employer as an electrician was Smith and Spratt in Botany. He thought he probably earned around $600 each week. When he resigned from that work he said he could not be "too forthcoming with the real reason" he was leaving. That reason involved the fact that he had lost concentration momentarily on two occasions while undertaking work in airport tunnels alone and he had electrocuted himself twice as a result. He did not want it known that this had happened for several reasons – first he did not want his reputation as an electrician affected and it was not lawful to undertake work of that type alone and he [sic] taken the risk to do so. He felt he had to stop that kind of work because it was just too dangerous and the two "big whacks" he had taken had "slowed" him down. 39. The Board noted that the applicant had sought entitlement for tinnitus and hearing loss around 2004 and that he had had the assistance of an advocate to do so. At that time there was no mention in the medical records or the claim of any problem with the applicant's wrist or ankle and the submission was that the hearing impairment made the applicant's work as an electrician dangerous. This seemed curious given the applicant's current claims that by that time his wrist and ankle conditions were the sole reason he had ceased all his part-time work in 2002. The applicant replied that he was not aware he could seek entitlement for the wrist and ankle conditions at the time. As for the danger working as an electrician, his hearing loss was definitely a factor, he said, along with the "blip thing" – "blip thing" being defined by him at the Board's request, as the momentary memory loss that resulted in the two big "whacks". 40. The applicant told the Board that he had not looked for work since his last paid work around 2002. He is no longer capable of doing anything and feels as if he is "out of the race". He has not kept his qualifications current and he resides in a housing commission residence from which he forces himself to go out every day. He often goes home to look after his elderly and terminally ill mother. He is still capable of driving a car but he does so very infrequently. 41. Finally, the Board notes in the material to date there is no completed work ability report and one should be available before the next hearing. While Dr Bennett has stated in Exhibit 1 that in his view the applicant is incapable of working at all because of his wrist and ankle condition, this is a very short typed note that has been amended with handwriting and is not sufficient to assist the application. In particular, the Board requires information as to the impact if any of the non-accepted memory lapse condition and any other condition on the applicant's work capacity. 42. The matter stands adjourned under section 152 pending the availability of the above material. 36 The Board then wrote to the Department of Veterans' Affairs saying: REQUEST FOR FURTHER INFORMATION PURSUANT TO SECTION 152 OF THE VETERANS' ENTITLEMENTS ACT 1986 … The above matter was before the Board on 5 April 2011 in respect of an application for review concerning decisions of the Repatriation Commission dated 22 June 2010 and 12 October 2010. At the hearing, the Board considered that it could not make a determination on the available material for the reasons set out in the attached "Reasons for Decision". Accordingly, the Board kindly requests that you obtain the following information: from Dr David Millon [sic], orthopaedic specialist, a GARP assessment of the applicant's orthopaedic conditions from Dr David Bennet [sic], local doctor, Edgecliff, a work ability report from a suitably qualified occupational physician, a report addressing all accepted and non-accepted conditions with an opinion on the impact, if any, each has on the applicant's capacity to work. In requesting the information, the Board would be grateful if each doctor could be provided with a copy of the attached "Reasons for Decision". The matter stands adjourned under section 152 of the Act pending receipt of the above. 37 The occupational physician consulted was Dr Blair Christian. Dr Christian's report made no reference to the BLIP Syndrome, or its reported symptoms. Indeed, after setting out a number of other matters, including hearing problems, Dr Christian said: Medical History: Mr Kawicki tells me that other than the conditions noted above he is fit and well. … 38 There is no indication of any further follow-up or consideration of the matter about which the Board asked. 39 In its second decision, on 9 May 2012, the Board recorded the following: 15. Mr Kawicki told the Board that he left his job at the airport in 1998 because his employer expected him to do work that was too dangerous for one person to do on their own. He was required to go into the tunnels below the airport and if something had happened, he could have been there for days before anyone found him. He was particularly concerned about this because he had been experiencing some very brief "blackouts". Mr Latimore questioned whether these blackouts were memory lapses, however Mr Kawicki confirmed that he meant very brief periods where he felt he had lost consciousness) [sic]. Mr Kawicki said it was unsafe for him to work as an electrician in an isolated situation, whilst experiencing these blackouts. He gave himself two large electric shocks, possibly as a result of these lapses. 16. Mr Kawicki said that after leaving his job at the airport, he had a lot of tests to try and ascertain the cause of these brief blackouts, but there was no conclusive diagnosis or cause identified. They may be because of chemicals he was exposed to during his service, or they could be related to alcohol. The doctors referred to them as "blip syndrome". He still experiences them more or less daily but he is used to them now. They wouldn't have stopped him doing regular work as an electrician, but they did stop him doing the job at the airport because of the particularly isolated conditions. 17. Mr Kawicki said the dangerous work and his compromised attention because of this "blip syndrome" was the "real" reason he left this job, however he did not give this as his reason when he resigned, because he did not want to be "branded" as a problem employee when he looked for other work. When he left this job he had no intention of ceasing work altogether, and it wasn't until some years later that his ankle caused him problems such that he felt he could not work. 40 The Board confirmed the delegate's decision about the general rate entitlements. When it considered the special rate the Board said: Third Test s24(1)(c) 58. This test requires that the Board be reasonably satisfied that Mr Kawicki is prevented from undertaking the remunerative work he was undertaking because of his war-caused disabilities alone and that he has by reason thereof suffered a loss of salary on his own account. 59. Mr Kawicki told the Board on this occasion and at the previous hearing that he left his last full time job at the airport because of the dangerous work conditions and his concerns about the "blip syndrome" he was experiencing. The Board is satisfied from his evidence that his accepted conditions were not a factor in his decision to leave this job in 1998 and were certainly not the sole reason. (Emphasis in original.) 41 However, when the Board assessed the present position it made no reference to this issue. It said: 62. In addition to this, the Board considered that Mr Kawicki did not meet the requirements of section 24(2)(a)(ii) as he is not prevent from engaging in remunerative work now because of accepted conditions alone. The Board is reasonably satisfied by the medical evidence already discussed, that Mr Kawicki has unaccepted conditions affecting his left ankle which would be contributing to any incapacity he has for work. The Board also notes Mr Kawicki's own evidence regarding the extended period he has been out of the paid workforce, and his age and considers that these factors also must contribute to any incapacity or inability to work. 63. The Board is therefore reasonably satisfied that Mr Kawicki fails the third test and as a consequence, he does not satisfy the requirements set out for an earnings-related rate of pension at the Special rate. (Emphasis added – this condition was accepted by the AAT on 19 March 2010 to be defence-caused.) 42 As the matter went to the AAT, therefore, Mr Kawicki should have understood that the BLIP Syndrome was likely to be relevant to any assessment of why he left his last full-time employment in 1998, but he was not on any particular notice that it would be suggested to be a reason why he could not work as an electrician at all during the assessment period. 43 Indeed, during Mr Kawicki's evidence to the Board, the following exchange occurred between Mr Kawicki and Board members: MR KEHER: And you told us that the electrical shocks were caused by blackouts. MR KAWICKI: Not blackouts as such. I mean, just, like, you know you have these – they're only a couple of seconds. So you could tell me now you're going to give me your phone number and I would put it down, but I would forget the first digit. But that's enough to knock you out, you know. MR KEHER: Have you ever had it explored as to what's the cause of the blackouts? MR KAWICKI: Yes. Yes. Yes. I had the check. I went down to the Prince of Wales and I've done extensive checks. The blood circulation – the physical checks, and they could find no problem and they put it down to the blip syndrome. MR KEHER: Blip syndrome. MR KAWICKI: Yep. That was where they couldn't find any cause. That could have been caused by, you know, the chemicals I was exposed to in the RAF, it could have been from drink. I don't know. You know what I mean. MS MOIR: Do you still have those? MR KAWICKI: Oh yeah. But, you know, it's just a part of life. I don't know whether it's age or just that. But I still got that. MR KEHER: And how often would you experience something like that? MR KAWICKI: Every day. In some form or another. Yeah. MR KEHER: A couple of times a day? MR KAWICKI: I don't even worry about them now because it's just a part of life. MR KEHER: Would it be – and I appreciate it's difficult to put a number on it because you're probably used to it. But would it be every hour? MR KAWICKI: No. No. Sometimes you wouldn't go a day. It's just a - - - MR BURTT: What are you talking about here? What do you get every day? MR KAWICKI: Memory lapses. MR BURTT: Not blackouts. MR KAWICKI: No. No. I never had blackouts as such. No. MS MOIR: I'm not sure what the distinction between a memory lapse and a blackout is. MR KAWICKI: No. No - - - MS MOIR: A memory lapse where you go, "What's my pin number again" or that sort of thing? MR KAWICKI: No. These – there's an aberration, that's why they call it the blip syndrome. It's something, like as I said I'm unaware of what I'm doing for a split second or a second. I mean in my game if you're working on a switchboard that's dangerous, right. MS MOIR: Yes. Yes. You need to be alert. MR KAWICKI: In that respect that's why I ceased that particular job. It didn't stop me doing electrical work or any other work: that specific job. But as I said I couldn't enunciate it at the time, because as I said it would have branded me. 44 Mr Kawicki's GP addressed this distinction in a letter provided to the AAT, dated 18 March 2014: This letter is to clarify a few points relating to Mr Kawicki's disabilities and confirm the reason why he is unable to work at all in his current physical state. Mr Kawicki has had multiple disabilities approved under the GARP V assessment. Of particular notice are the disabilities of his left wrist and left ankle. It is these disabilities that mostly contribute to Mr Kawicki's inability to work. He has stated and it is in one of his assessments that he had been diagnosed with a so called 'Blip' syndrome which made it unsafe for him to perform a particular task. At the time Mr Kawicki was required to use infrared in the repair of switchboards with 'live' wiring. This type of work is very specific and makes up only a tiny fraction of the 'typical' duties that an electrician might be asked to undertake. Mr Kawicki's usual duties and those that he performed the majority of his time as an electrician in the construction industry involved 'dead' wiring and therefore his concentration levels did not need to be as high as for the previous stated minority 'live' switchboard work. Therefore the 'Blip' syndrome is of no consequence in his ^inability to work on the whole, which is predominantly due to his recognized disabilities of his left wrist and ankle. Should you have any queries relating to this please do not hesitate to discuss this with me during our telephone conference or at my surgery. (Correction in original.) 45 In his evidence in chief to the AAT, Dr Carran said: … the Blip syndrome is such a tiny part of it, of the disability, that I don't think it really is of any consequence to his ability to work. 46 There was no cross-examination about these issues. 47 The other medical experts whose recent reports were before the AAT did not refer to BLIP Syndrome. One doctor, Dr Robin Chase, was shown Dr Fogg's 1999 assessment. The following exchange occurred: <ROBIN CHASE, affirmed: … <EXAMINATION-IN-CHIEF BY MR O'REILLY … … You have had cause to look at some documents that the tribunal has from Centrelink; is that correct?---Yes. And the Centrelink documents are before the tribunal and they detail the history of Mr Kawicki going on the disability support pension in 1999?---Yes. Do you have any comments about the documents that you have had a look at there? ---Well, I mean, it clearly indicates that he stopped working as an electrician because of this blip syndrome. Now, I should also mention that Mr Kawicki made no mention whatsoever of the blip syndrome to me. … Now, when I go through past medical history I went – if you have what I – I actually specifically ask about cardiac and neurological conditions, and they – Mr Kawicki answered those in the negative. So I find it striking that he had a neurological condition which he stopped work that he didn't reveal to me, and I would agree by the way that working as an electrician one should not have transient periods of consciousness. 48 Mr Kawicki, in his evidence to the AAT, was asked in cross-examination about the effect of the BLIP Syndrome on his capacity for work after 1998: And you left the job after that, as a result of that, with Sydney Airport, as a consequence of that?---Yes. And you never were formally employed as an electrician again after that?---No. But that had nothing to do with the blip syndrome. I tried to get work. … But would it be fair to say, Ted, that it's really a combination of all those things, as far as you're concerned?---Well, not really. If you were to look at my work history, the blip syndrome would not mean an iota of difference to the carriage of my duty. You've just given evidence as to that as - - - ?---In that particular specialist area. In my previous working experience, no consequence of any sort. Yes. Yes. You never, though, were employed, as we've said – you've given evidence already – you were never formally employed as an electrician again after this, were you?---No but that wasn't because of the blip syndrome. That had nothing to do with the blip syndrome. It had nothing to do with it?---No. But the problem I had to get out of the immediate employment was because of that specific danger posed to me. That's – that's – had nothing to do with me going out to a construction site, going out to a building site, and wiring the house up. It had nothing to do with it. Absolutely nothing. Nothing to do with it? You said - - - ?---Nothing at all. I could have done that at the time until 2001 where, that's it, I drew the line, and not just electrical work but any work. But the blip – to try to put the blip syndrome into any of my – the carriage of any duties after that is just, as I said, drawing a long bow indeed. It's got absolutely nothing to do with it. … Can I just, well, maybe I can bring this – this is quite a long time ago now we're talking about – we're talking about, well, more than 15 years ago – 1998 – do you still have problems with lapses of concentration now?---Not in as far as that's concerned, but I do have, as you can probably notice, I lose the train of thought. But this goes for more than a few seconds now, and I think that's from other - - - So, but do you think, is the blip syndrome affecting you now? I mean, not in this instance, but does it affect you to this day?---No, well, it wouldn't because the thing is, I don't do anything that constitutes that now. The only thing it may do is, at times, when I'm thinking of a number of something, you know, I'll drop a digit or something, you know what I mean? But that's not – this may happen a few times a day, I don't know, because it's of no significance. It doesn't impact on what I do. Okay, so, all right, but you are saying, I think, that you do lose concentration, from time to time?---But not to the extent that would stop me from working. Yes, but let's just put that to one side for a moment. All I'm asking is that on a day-to-day basis, at this time, do you think that the blip syndrome is affecting you, so that you lose concentration during the day?---No, not as far as I know. It may, as I said, unbeknownst to me. As I said, this is only a momentary thing. 49 Dr Carran supported this position. There was no contemporaneous medical evidence against it. There was only the statement by Dr Fogg in 1999 that the condition was permanent and stable. The AAT decision – refusal of the special rate pension 50 There are two aspects of the AAT decision that have been challenged in the present proceedings – the refusal of the special rate and the failure to back date 100% of the general rate to 24 June 2007. Consideration of the general rate does not arise to the extent the special rate might be granted, but it is necessary to establish at least 70% incapacity for the special rate so the second aspect is also important, if the special rate is otherwise payable. 51 In its decision, the AAT dealt with entitlement to the special rate, in conclusion, as follows: 55. Dr Chase, who prepared a report dated 13 May 2013 for the Respondent, stated that Mr Kawicki's work capacity "is affected by his accepted disabilities alone". However, in oral evidence, Dr Chase said that Mr Kawicki had failed to mention in their interview that he had been diagnosed with the Blip Syndrome. Mr Kawicki explained that he did not mention this to Dr Chase because the Blip Syndrome did not prevent him from working, and could therefore be ignored for the purpose of assessing his eligibility for Special Rate. 56. In his letter dated 18 March 2014, Dr Carran said it is Mr Kawicki's left wrist and left ankle conditions that "mostly contribute to his inability to work" [my emphasis]. He said the Blip Syndrome, which made it unsafe for Mr Kawicki to repair live switchboards at the Airport, "is of no consequence in his inability to work on the whole, which is predominantly due to his recognised disabilities of his left wrist and ankle" [my emphasis]. In oral evidence, Dr Carran said the Blip Syndrome would not affect the "vast majority" of work that Mr Kawicki might undertake. 57. Having reviewed the above evidence, I am not satisfied that the incapacity from Mr Kawicki's accepted conditions, alone, prevented him from continuing to undertake, the remunerative work that he was undertaking. I have paid particular attention to the contemporaneous medical evidence from 1999 which indicates that it was the Blip Syndrome that was the basis of his claim for the DSP being granted, and his statement in September 2009 which recognises that the Blip Syndrome was, at least, a factor in his being incapacitated for work. It may well be that Mr Kawicki's left wrist and left ankle were the main reason for his stopping work in 2001, but I am not satisfied that it was those conditions alone. Thus, s 24(1)(c) of the VE Act is not satisfied and Mr Kawicki is not qualified for payment of the disability pension at the Special Rate. (Emphasis in original.) 52 There are a number of elements at work in these paragraphs. First, there is the qualification on Dr Chase's otherwise unequivocal written opinion. This alteration in Dr Chase's opinion appears to have defeated Mr Kawicki's claims. Secondly, there is the suggestion that Dr Carran's opinion was relevantly qualified in a way that also defeated the claims. Thirdly, there is the conclusion that the reason for stopping work was in part connected with BLIP Syndrome. This has three elements – Dr Fogg's assessment, statements made by Mr Kawicki in 2009 and a conclusion by the AAT that Mr Kawicki's left wrist and left ankle were not the only reasons he stopped work in 2001. 53 Mr Kawicki's own statement was earlier set out accurately by the AAT as follows: 52. In the previous Tribunal proceedings, Mr Kawicki provided a statement dated 19 September 2009. In the final paragraph he stated: "I stopped working in 1998 due to my leg, wrist and memory problems caused by the electrical shocks I had sustained during my working life. I have been in receipt of the Disability Support pension ever since." 54 The summary in [57] was, with respect, lacking in precision. Mr Kawicki said that the symptoms later diagnosed as BLIP Syndrome were a reason he stopped work (in a particular job), not a reason why he was incapacitated in 2009. 55 I accept that the factual findings of the AAT are beyond ordinary review in the present proceedings although, with respect, the assessment of the evidence of both Dr Chase and Dr Carran is open to debate. 56 Equally, the finding that Mr Kawicki stopped work for reasons connected with the BLIP Syndrome must be accepted for present purposes. 57 Nevertheless, in my respectful view the AAT has made a legal error. 58 The AAT accepted that s 24(1)(b) was satisfied. Mr Kawicki is "totally and permanently" incapacitated by his defence-caused injuries. 59 Section 24(1)(c) states the requirement that: 24 Special rate of pension (1) This section applies to a veteran if: … (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; and … 60 The requirement is one which must, in my view, be related to the instructions in s 19(5B), (5C) and (6), which provide: 19 Determination of claims and applications … (5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case. (5C) The matters that the Commission must assess are: (a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and (b) subject to subsection (6), the rate at which the pension is payable. … (6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period. … 61 I shall return to those instructions in another connection, but the point of present relevance is that the AAT was required to assess, by reference to the whole of the assessment period, whether the condition stated in s 24(1)(c) was satisfied. That condition, apart from being referable to the assessment period, is stated in the present tense: "is prevented"; "is suffering". 62 What was required, therefore, was an assessment of whether defence-related conditions alone, or some other circumstance, prevented Mr Kawicki from continuing to work as an electrician during the assessment period. His evidence was that the BLIP Syndrome had earlier caused him to stop doing some, but only some, of that work. The other work, he said, he could not do after 2001 due solely to his defence-related conditions. Those contentions required assessment, with the aid of the historical and contemporary medical evidence. 63 I do not see that assessment in the AAT decision. Paragraph 57, for example, is expressed in the past tense, not the present. Mr Kawicki and Dr Carran made a clear distinction between work on live electrical connections and other electrical work. No contradiction of the distinction appears to have been offered. There appears to have been no contemporaneous evidence to confirm that Mr Kawicki suffers from BLIP Syndrome, or what the present consequence might be. 64 At one point, later in the decision, the AAT said: 68. … While, as indicated above, the Blip Syndrome is a factor in Mr Kawicki's inability to work, nevertheless, his other accepted conditions, in particular his left wrist and left ankle, would of themselves prevent him from working. 65 Although this statement is expressed in the present tense, it is clear that it does not add to the discussion set out earlier in [57] of the AAT decision. It is, nevertheless, of interest in the present context because it is clear that the AAT regarded the defence-related conditions to be incapacitating in their own right. It was accepted in argument in the present case that, apart from reference to BLIP Syndrome, the AAT had expressed no other impediment to payment at the special rate. 66 In my respectful view, for the reasons I have expressed, the AAT failed to address the correct question and made an error of law when dealing with the special rate. The AAT decision – refusal to backdate the general rate pension 67 The findings I have made to this point mean that the question of payment of the special rate, at least, will require further attention by the AAT. 68 The second aspect of the challenge to the AAT decision raises, directly or indirectly, questions which may to an extent bear upon the special rate issue so far as it concerns the date of any entitlement, if a special rate is awarded. 69 Part of the challenge concerned the refusal to backdate the further increase granted by the AAT (to 100% of the general rate) to 24 June 2007. 70 When the delegate last assessed Mr Kawicki's circumstances, on 22 June 2010, he commenced his decision by saying: On 19 March 2010, the Administrative Appeals Tribunal accepted osteoarthrosis of the left wrist (a) and osteoarthritis left ankle (a) as related to service and referred the case to the Repatriation Commission for assessment of the disability pension. 71 The delegate then made two assessments – one of 24 June 2007 and one of 19 March 2010. The delegate explained: Assessment of Pension with effect from 19 March 2010. Pension is reassessed from 19 March 2010 because the Administrative Appeals Tribunal remitted the matter to the Commission for assessment on that date. 72 It appears to me that the delegate, in his two assessments, only treated the AAT finding about the defence-related conditions as effective from 19 March 2010. No other reason was assigned for the two different assessments, which resulted in conclusions that 60% of the general rate should be paid from 24 June 2007, and 90% of the general rate should be paid from 19 March 2010. 73 In the second decision of the Board, which reviewed the latest decision of the delegate, the delegate's assessment was accepted as "accurate". This conclusion appears to refer to the "functional impact" of the range of matters regarded as relevant at each date and that some had increased in effect over time. The Board, thus, commenced its explanation: 25. The Board noted that Mr Kawicki's degree of incapacity was assessed by the Repatriation Commission at 60% with effect form 24 June 2007. This assessment was based on the conditions which had been accepted at that time, which were cutaneous larva migrans, bilateral sensorineural hearing loss, bilateral tinnitus and solar keratosis for which a rounded total of 35 points was allocated. Mr Latimore made no submission in relation to the assessment of any of these conditions and the Board is reasonably satisfied that 60% was an accurate reflection of the functional impact of these conditions at that time. 26. The Commission then increased the assessment to 90% with effect from 19 March 2010. This assessment included the conditions of osteoarthritis of the left ankle and osteoarthritis of the left wrist. At folio 100 the Commission's Reasons for Decision note that 10 points had been allocated for his ankle condition and 5 for his wrist condition as well as 10 points for resting joint pain. In combination with the revised assessment for the other conditions (the allocation for sensorineural hearing loss was increased from 5 to 10 points), this led to a rounded total of 50 points, which, with a lifestyle rating of 4, led to the 90% rate of pension. (Emphasis added.) 74 This appears to confirm that the AAT directions were only taken into account from 19 March 2010. 75 There are two issues which appear to me to arise from this approach which it is as well to mention before examining how the AAT dealt with the matter. 76 The first is that I do not understand the basis upon which the delegate or the Board treated the AAT decision on 19 March 2010 as having effect and relevance only from that date. Perhaps there is a reason which does not appear from my own examination of the appeal papers. This is a matter with which the AAT may deal when the matter returns to it. In its own latest decision it raised no issue about it. 77 The second matter concerns the instructions in s 19(5B), (5C) and (6) of the Act, which I set out earlier, to which now must be added a reference to s 19(5D), which provides: 19 Determination of claims and applications … (5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed. 78 It should be noted that the direction in s 19(6) to the effect that any pension at the intermediate or special rates should be assessed as not lower than the rate which applied "most recently" during the assessment period, appears to prevent variable fixation of rates of pension under s 23 or s 24, but not under s 22 where the position appears to be (s 19(5C)) that the rate to be assessed is that which "would have been payable from time to time during the assessment period". There was, therefore, no legal reason preventing different percentages of the general rate of pension from being assessed, provided no other legal error was made. 79 The AAT made its own assessment of the level of functional impairment arising from the two defence-related conditions identified on 19 March 2010 – osteoarthritis of left wrist and osteoarthritis of left ankle. It accepted, after discussion, levels of impairment which corresponded with those assessed by Mr Kawicki's GP, Dr Carran. 80 In respect of other conditions the AAT accepted an assessment made by an Occupational Physician, Dr Chase. 81 The overall assessment was that 100% of the general rate of pension was assessed as payable. Then the AAT said: 70. I have decided to vary the decision with effect from 19 March 2010, and not 24 June 2007 because of insufficient medical evidence pertaining to the earlier period. Given that osteoarthritis is a progressive condition, in my view, in the absence of other persuasive evidence which would inform when an increase should take effect, it is reasonable to take 19 March 2010 as the date from which the General Rate of pension should be increased. 82 Mr Kawicki's complaint on the present application was that he had insufficient notice that such an approach might be taken. His written submission about this issue said: Grounds 2, 3 and 4 4. The Tribunal decided that the increase in my General Rate of Pension should be increased from 19 March 2010, rather than 24 June 2007 (para 70). Nothing was said during the hearing which indicated to me that the Tribunal would select any date other than 24 June 2007 for the payment of any increase. I expected that date because it was the date used by the Veterans' Review Board. If I had been given the opportunity to argue that question, I would have relied on the report of Dr David Bennett dated 9 October 1997 (Appeal Book pages 25-32) to justify that earlier date. 83 This submission, with respect, misstates the position in a number of ways. 84 The AAT increased the delegate's assessment of 90% of the general rate, from the same date of effect. It was obvious enough that any challenge to the assessment of 60% from 24 June 2007 would require adequate evidence. 85 The Board did not give any endorsement to 24 June 2007, except in relation to 60% of the general rate. It left fixture of the rate at 90% from 19 March 2010 undisturbed. 86 Dr Bennett was Mr Kawicki's previous GP. The report identified by the written submission was dated 9 October 2007 (not 1997). Although this report gives some support to a claim of disability, it was followed (on 1 November 2007) by a report from Dr David Maxwell, Orthopaedic and Spinal Surgeon, which suggests that any disability at that time was relatively minor. 87 I do not accept that Mr Kawicki was denied a proper opportunity to deal with this matter. The decision about the date of effect of the increase in the general rate from 60%, subject to a matter to be mentioned shortly, involved an assessment of the merits by the AAT and the exercise of a discretion. I would not (and could not) set it aside. 88 However, there are two matters which should receive some further attention when the matter returns to the AAT to deal with the question of the special rate. 89 One matter (dealt with further hereunder) is whether Mr Kawicki was entitled to the intermediate rate of pension under s 23 of the Act. 90 The second (which is relevant to the question of the general rate of pension and potentially to an entitlement to the special rate of pension) is that the AAT should consider whether the delegate and the Board gave proper attention and effect to the AAT decision of 19 March 2010. If not, one possibility is that Mr Kawicki is entitled to an adjustment to the general rate of pension from 24 June 2007, or some later date. Another possibility (if at any time before 19 March 2010 Mr Kawicki was at least 70% impaired) is that he might qualify for the special rate of pension from that date if, of course, he qualifies at all. A further issue 91 No attention appears to have been given by the Board or the AAT to whether Mr Kawicki might be entitled to the intermediate rate of pension under s 23 of the Act, although the delegate decided he was not. 92 Perhaps that was because Mr Kawicki satisfied s 24(1)(b) of the Act (could not work more than 8 hours per week) and s 23 does not apply if s 24 applies (s 23(1)(d)). But the AAT found that s 24 did not apply. 93 For the reasons I expressed in Smith v Repatriation Commission (2014) 220 FCR 452 (at [36]-[40], [55] and [71], see also per Foster J at [194]) consideration should also have been given by the AAT to whether Mr Kawicki was entitled under s 23 of the Act to the intermediate rate of pension, which is higher than 100% of the general rate. Conclusion 94 I will set aside the decision of the AAT dated 10 April 2014, with the intent that the AAT should deal again with the question of entitlement, if any, to the special rate of pension and also the intermediate rate of pension. The AAT should give attention, if necessary, to whether assessment of the general rate of pension at 60% from 24 June 2007, pays proper regard to the findings of the AAT made on 19 March 2010. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 30 October 2014