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No 1 February 2009

Repatriation Commission and Money

[2009] FCAFC 11

COURT Federal Court, Adelaide (via video link to Perth)
JUDGE Finn, Dowsett and Edmonds JJ
DATE OF DECISION 13 Feb 2009
DECISION Appeal allowed, decision of Tribunal set aside and remitted.
ISSUES Proper meaning of “appropriate clinical management” – whether failure to obtain appropriate clinical management a material or contributing or aggravating factor of claimed condition

Facts

A delegate of the Repatriation Commission (Commission) rejected Mr Money’s claim for  ‘chronic bronchitis and emphysema’. The decision was affirmed on review by the Veterans’ Review Board (VRB). Mr Money sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal set aside the decision and substituted its decision that Mr Money’s idiopathic fibrosing alveolitis (IFA) was defence caused. Central to the Tribunal’s decision was the meaning ascribed to the term ‘appropriate clinical management.’ The Commission appealed the decision of the Tribunal to the Federal Court. The Federal Court dismissed the Commission’s appeal on the ground that the Tribunal did not err in fact finding based on evidence. The decision of Justice Stone was appealed to the Full Federal Court.

Full Court’s Consideration

The expression “ inability to obtain appropriate clinical management”

The Commission sought to challenge the Primary Judge’s conclusion that the expression  “ inability to obtain appropriate clinical management” included not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition.

In the joint judgment, Justice Finn and Justice Edmonds considered that the Tribunal erred in the construction it placed on cl 5(a) as limited by cl 6, as did the primary judge, to the extent that the construction given was an overinclusive one. Their Honours said:

[42] ... The cl 5(a) inability must occasion a material contribution to, or aggravation of the IFA disease. The requirement that the inability affect the disease itself is the common thread that runs  through s 70(5), s 120B(3), s 196B(3) and cl 5(a) as limited by cl 6 of the SoP…

[43] However, we do not on the material before us accept that the expression "appropriate clinical management" envisages only positive treatment of the disease. Both the Tribunal and Dr Waring expressed opinions consistent with the propositions that advice properly could and should be given to a patient in the proper course of providing a prognosis that he or she desist from certain activities (eg to stop smoking) or take other steps (eg to lose weight or to cease to work on submarines) as measures designed to preclude exacerbation of the disease’s inexorable progress. Let it be accepted that, on the evidence, there was no treatment recognised to be efficacious in halting the progress of the disease let alone of curing it. Nonetheless, we are satisfied that the making of prudential recommendations as to the taking of, or refraining from, courses for the purpose of thereby foreclosing the possible impacts of extraneous causes that might be likely to accelerate the progress of the disease may, in appropriate circumstances, properly be regarded as falling within appropriate clinical management for cl 5(a) purposes. In expressing this view, we agree with the primary judge’s conclusion that providing advice as part of the appropriate clinical management of a condition in relation to factors not mentioned in the SoP does not undermine the regime of SoPs.

[44] A further consequence of our view is that, notwithstanding that there may not be an efficacious positive treatment for IFA, a failure to diagnose IFA could itself be a manifestation of an inability to obtain appropriate clinical management of IFA because it would preclude the giving of advice for the purposes we have mentioned…

[46] …If providing advice on extraneous factors that could possibly accelerate the progress of a disease constitutes appropriate clinical management of that disease as we have held, then it is not to the point that such other "factors" are not referred to in the SoP. Rather, they are capable of being captured by what the factor that is prescribed comprehends…

[47] …Again we have indicated our view that the expression used in cl 5(a) is not limited to the provision of some beneficial treatment that was available for the disease. It could encompass recommendations as to the taking of reasonable precautionary measures to preclude the exacerbation of the disease’s progress…

[59] It was insufficient to show that, there was simply an inability to obtain such management. Before such an "inability" could qualify as a cl 5(a) factor it had to be shown to have contributed in a material degree to, or aggravated, Mr Money’s very slowly progressive disease.

A ‘state of affairs’ is not an ‘occurrence’

In the joint judgment, Justice Finn and Justice Edmonds also considered:

[50] We are satisfied that subpara (14)(a) is inapt in the circumstances to relate the cl 5(a) factor to Mr Money’s defence service. We agree with the appellant’s submission that it strains the ordinary meaning of the word "occurrence" in this setting. The word more naturally refers to an event, incident or happening or a combination of such events, etc which caused a factor to occur. While one may be able to isolate examples of the system’s failure in the medical management structure which affected Mr Money , these were simply manifestations of "the state of affairs" (as the Tribunal so described it) that caused Mr Money not to be provided with appropriate clinical management. It was that state of affairs (which was not an "occurrence"), not the individual instances manifesting it, that produced the cl 5(a) inability.

In a separate judgment, Justice Dowsett considered the preferable construction of s120B(3)(a) of the VEA. His Honour said:

[86] Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service. If that question is answered in the affirmative, the Commission may proceed to consider whether it is reasonably satisfied as to the relevant causal link contemplated by s 70…Section 120(4) requires that the Commission be reasonably satisfied as to such matter…

[87]… it would not be sufficient to identify the connection as being simply "inability to obtain appropriate clinical management". That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service. That process necessarily involves:

[95]…The [Tribunal’s] failure to identify the contribution or aggravation necessarily led to there being no identification of the connection between it and the Veterans’ service….

[99] The Tribunal erred in focussing on the statement of principles to the exclusion of any proper consideration of the question posed by s 70(5) in accordance with ss 120(4) and 120B(3). The question posed by s 120B(3)(a) was not addressed, and so that posed by s 120B(3)(b) could not be addressed.

Formal decision

The Commission’s appeal was allowed and the decision of the Tribunal was set aside and remitted to the Tribunal for further hearing.  Justice Finn and Justice Edmonds were unprepared to make a finding that Mr Money’s condition was not defence caused, as their Honours did not accept that degree of construction the Commission had placed upon the SoP.

Editorial Note

Inability to obtain appropriate clinical management

In Money, both of the judgments make clear that in respect of an “inability to obtain appropriate clinical management” the inability must occasion a material contribution to, or aggravation of the claimed condition.  In addition, both judgments emphasise that it is necessary for a decision maker (in this case the Tribunal) to identify any contribution to a material degree, or aggravation of the claimed condition, or in other words, how the inability affected the disease itself.

While Justice Finn and Justice Edmonds agreed with the primary judge that "appropriate clinical management" is not limited to the provision of beneficial treatment, it is important to note that an inability to obtain such has to be shown to have contributed in a material degree to, or aggravated, the claimed condition. 

Assessing a contention of connection with service

Justice Dowsett’s decision provides clear guidance on how a decision maker should assess a contention of connection between a person’s claimed condition and their service.

Step 1 – identifying a connection with service

Firstly, the decision maker must, on the material before it, identify any connection between the disease and a veteran’s service. The decision maker must consider all the material, but not the statement of principles. However, in a practical sense these may help the decision maker to identify relevant aspects of the material he or she must consider.

Step 2 – deciding whether the claimed condition is connected with service

Secondly, the decision maker must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service.

Step 3 – deciding whether there is a casual link

Thirdly, the decision maker must proceed to consider whether he or she is reasonably satisfied as to the relevant causal link set out in section 70 of the VEA and that the exclusion provisions in that section does not prevent acceptance of the claim.

All Practice Notes