Advisory from Disability Compensation Branch
No 4/2003
This is an advisory note only. Disability Compensation Branch and Legal Services Group have agreed this policy view. It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
Federal Court Decision in KATTENBERG - MATERIAL CONTRIBUTION, AGGRAVATION, OR THE “BUT FOR” TEST.
On 11 April 2002 Emmett J of the Federal Court handed down his judgment in Kattenberg v Repatriation Commission [2002] FCA] 412. This decision has not been subjected to further appeal and therefore represents the law in relation to the construction of factors in Statements of Principles.
The decision means that, in cases where there is a factor that may be met by a minimum accumulation of consumption or exposure over time, no longer must that factor be satisfied wholly by an accumulation that is caused by service. It is sufficient for a claim to succeed, that the veteran had the level of consumption or exposure required by the Statement of Principle (SoP) and that the consumption or exposure that can be related to service has made a material contribution to the overall consumption or exposure.
The Kattenburg Decision
In his decision on Kattenberg, Emmett J held that the AAT had erred in law in its construction of Factor 5(f) of SOP 130 of 1996.
SoP 130 of 1996 deals with Intervertebral Disc Prolapse. Factor 5(f) is in the following terms:
- smoking at least 30 pack years of cigarettes before the clinical onset of
intervertebral disc prolapse
The AAT in its decision had found that as Mr Kattenberg had an established smoking habit before his operational service, only the additional consumption of cigarettes during his operational service and thereafter could be taken into account in determining whether he met the SoP requirement for the 30 pack years to be war-related.
The Federal Court disagreed with this analysis and held that the AAT was in error in not considering the hypothesis that:
The applicant's intervertebral disc prolapse is connected with his relevant service because the smoking by him of thirty pack years of cigarettes before 8 December 1998 was contributed to in a material degree by, or was aggravated by, that service, or would not have occurred but for the rendering of that service.
The Court was able to make this finding because of its interpretation of the words “related to” in respect of the requirement that the SoP factor be linked to service. These words allow for the interpretation that where the 30 pack years of smoking is contributed to in a material degree, then the required connection can be made out.
The Court in its interpretation drew upon earlier precedent that the word “material” indicates a contribution that is above a trivial contribution rather than the general meaning of a “substantial” contribution.
Application
Consequently, when considering a SoP factor that may be met by a set accumulation of consumption or exposure, the initial task is to decide whether a claimant's overall experience meets the minimum requirements set out in the SoP (within the required timeframe if stated).
Consideration must then be given to whether the service-caused exposure made a “material” contribution to the total consumption or exposure. (This approach will not apply where a means of determining causality is provided through formulae set out in the SoP which take account of both service and non-service contribution.)
Where a veteran's overall consumption or exposure is below the minimum required by the SoP then clearly the SoP is not met and the claim must fail.
Where a veteran's overall consumption or exposure meets the minimum SoP requirement , then decision-makers need to determine what contribution was made to that situation by a claimant's eligible period of service under the VEA.
- If the consumption or exposure caused by service wholly meets the minimum SoP requirement, as has been the approach, the claim will succeed.
- If the consumption or exposure caused by service can be shown to be above a trivial contribution (ie. above de minimis in legal terms) then, on the case law, it is a “material” contribution and hence service is causally implicated in meeting the particular factor for a condition and the claim will succeed.
The possibility of a claim succeeding because of a contribution that is more than de minimus does not mean that all veterans will automatically succeed (although it must be said that in smoking cases their path is easier).
Need for Service Contribution
A service caused contribution is still a requirement. If the material before the decision-maker reveals that a veteran had an established smoking habit of say 20 per day before, during and after a period of eligible service, then a claim may not succeed.
Where smoking increased due to operational service but then reverted to the pre-operational service level then, particularly where the operational service period is short or uneventful or both, the claim may fail: it being shown that the increase was de minimis in the overall picture.
Due to the addictive nature of smoking, in particular cases it is open to find that smoking in the period after eligible service can be related to service particularly where the level on service increased significantly. This link is not as strong in some other areas (eg alcohol consumption) and, for lumbar spondylosis one would be hard pressed to accept that post service exertions should be counted as being caused by service. Nevertheless, even in the latter cases one must consider whether the service related contribution is material in the overall causal picture.
De Minimis
In Repatriation Commission v Bendy (1989) 18 ALD 144, the Court, said that
...the reference to materiality serves to make it clear that the contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored.
While it would be useful to offer for guidance that a contribution of less than x% could be considered de minimus, given the range of SoPs and variations in the factual circumstances in which materiality must be applied it is not possible to do so. Further, were the Commission to provide such a guideline it may be open to challenge that it was directing its delegates.
Examples
The attached examples illustrate the points being made.
Signed
Mark Johnson
Branch Head
Disability Compensation
27 November 2003
Examples – Advisory 4 of 2003
Smoking 1.
A veteran made an application for cancer of the colorectum to be accepted as service related. The smoking factor is being considered as no other factors apply. The SOP factor is:
“smoking at least 15 pack years of cigarettes”
He began smoking when he enlisted in the Navy in 1965 at age 20. At that time he smoked 20 cigarettes per day. In 1971 and 1972 he went to Vietnam on the HMAS Sydney for various short periods and his cigarette smoking increased to 30 cigarettes per day in this period. In 1973 he was discharged and cut back smoking for health reasons and only smoked 10 per day until 1989 when he ceased.
His total consumption of cigarettes is 17.5 pack years, consisting of:
- 6 pack years from 1965 to 1970 prior to eligible service.
- 3 pack years from 1971 to 1972 of which the increased amount due to service is 1 pack year.
- 8.5 pack years from 1973 to 1989 of which none is due to service as the rate of consumption is lower than the habit established prior to his eligible service.
The veteran does satisfy the minimum factor of 15 pack years of smoking and he does have some service-related smoking history, but the direct service-related component would here be very small. It would open to find that it did not make a material contribution to meeting the factor.
Smoking 2.
A veteran has made an application for emphysema to be accepted as service related. The smoking factor is being considered as no other factors apply. The SOP factor is:
“smoking at least 10 pack-years of cigarettes”
He began smoking when he enlisted in the Army in 1964. At this time he smoked 10 cigarettes per day. In 1969 he was sent to Vietnam for one year. During this time he began smoking 30 cigarettes per day. This continued until 1977 when he ceased completely.
His total consumption of cigarettes is 16 pack years, consisting of:
- 2.5 pack years from 1964 to 1968 prior to eligible service.
- 1.5 pack years in 1969 of which the increased amount due to his operational service is 1 pack year.
- 12 pack years from 1970 to 1977 of which 8 pack years could be accepted as being due to his eligible service given the addictive effect of nicotine sustaining an increase that occurred during his operational service.
The veteran does satisfy the minimum factor of 10 pack years of smoking and he does have a service-related smoking history. The service-related component (9 pack years) equates to 90% of the minimum requirement and thus did make a material contribution to meeting the factor. His application would be successful.
Alcohol 1.
A veteran has made an application for cirrhosis of the liver to be accepted as service related. The alcohol factor is being considered as no other factor applies. The SOP factor is:
“for men, consuming at least 150 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver”.
He enlisted in 1960 and began drinking 4 standard drinks per day. He went to Vietnam in 1968 for one year where he increased his drinking to 9 standard drinks per day. Upon returning to Australia this reduced to 4 standard drinks per day. In 1970 he ceased drinking.
His total consumption of alcohol over the period 1960 to 1970 is 167 kg of alcohol, consisting of:
- Prior to his eligible service - 12,000 standard drinks or 120 kg of alcohol.
- In his one year in Vietnam - 3,276 standard drinks or 32 kg of alcohol of which, in this example, 18 kg of alcohol is found to be due to Vietnam service.
- After returning to Australia - a further 1,500 standard drinks or 15 kg until cessation in 1970.
It would be open for a decision maker to find, in this example, that service did make a material contribution to meeting the factor.
Weight bearing
A veteran has made an application for lumbar spondylosis to be accepted as service related. The weight bearing factor is being considered as no other factor applies. The SOP factor is:
“manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis”.
The veteran enlisted from school when she was 17 and served from 1980 to 1984. She worked as a storeperson in Australia and once each day carried a load of 35kg or more. After discharge she found a job as a storeperson for a supermarket and twice daily lifted loads of 35 kg or more from 1985 to 1990. In 1991 she got a job as a clerk where heavy lifting was not involved.
Her total lifting amount over the period 1980 to 1990 is 203,840 kg consisting of:
- 50,960 kg of service related lifting
- 152,880kg of non-service related lifting.
The service-related component (50, 960kg ) equates to 30% of the minimum requirement and could be seen as making a material contribution to meeting the factor.