Repatriation Commission Advisory
No 8/2004
This is an advisory note only. Veterans' 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.
Subject:
Full Federal Court Decision – Benjamin v The Repatriation Commission
Purpose
On 21 December 2001, the Full Federal Court handed down its decision in the above matter. The purpose of this Advisory is to provide decision makers with guidance on how to apply the decision of the Full Court. The key issue addressed in this decision relates to the diagnosis of conditions claimed.
This Advisory details the approach that should be taken by Claims Assessors (CA) in establishing a diagnosis.
Issues
Elements of Diagnosis
Different conditions can on occasion be given various labels. A Claims Assessor must be satisfied that the particular label for a condition, given by a medical practitioner, is in accordance with the symptoms of that condition.
The first part of diagnosis has three elements, each of which must be determined to the reasonable satisfaction of the CA.
- Is the claimant's medical condition an injury or disease as defined in Section 5D of the Veterans' Entitlements Act 1986 (the VEA)?
- What are the symptoms of the injury or disease?
- What is the diagnosis or label placed on those symptoms by an appropriately qualified medical practitioner?
When determining a claim, the CA must determine whether a disease or injury exists. If the condition claimed cannot be defined as an injury or disease pursuant to Section 5D of the VEA, then the claim must fail.
If the claimed disease or another condition (see Clarifying Diagnosis, below) is found to exist, then the CA needs to look at the symptoms of that disease, and the label given to it by the appropriately qualified medical practitioner. The definition of the disease or injury found within a Statement of Principles (SOP) can be used as a guide to diagnosis. However, the SOP is not to be used by the CA to determine diagnosis. This is the key point clarified by the primary judge and Full Court decisions in Benjamin.
Clarifying Diagnosis
If a CA is uncertain about the diagnosis of the claimed disease or injury, they should seek further clarification from the medical practitioner who provided the diagnosis or label.
If this action does not provide the necessary clarification, it is open to the CA to seek a second opinion from another suitably qualified medical practitioner.
Should the claimant's symptoms not meet the label, then the CA should seek advice from the medical practitioner whether the symptoms are better described by another diagnosis or label.
For example, if Post Traumatic Stress Disorder (PTSD) is claimed but the CA is not reasonably satisfied that this is the appropriate diagnosis, the CA should seek advice from the medical practitioner whether another psychiatric diagnosis would be more appropriate (eg Anxiety Disorder).
Other Tools for Diagnosis
If a medical practitioner bases their diagnosis on relevant, clinical criteria, then this may also be taken into account by the CA in their decision on diagnosis.
It is permissible to use DSM IV as a tool for diagnosis. However, it must be noted that where the diagnostic criteria for a SoP are based on DSM IV, references by the CA to diagnosis in the determination must not be based on the SoP but rather to DSM IV.
Non-SOP Conditions
When deciding the diagnosis, a CA must take into account that a claimant can either have a condition or not have a condition. There cannot be two versions of the same condition (such as a SOP condition and a non-SOP condition). For example, it is not possible to have non-SOP Sensori Neural Hearing Loss. A claimant's symptoms either satisfy the diagnosis for a condition, or they do not.
Final Consideration
If, after following the steps outlined above, and ensuring that there has been full consideration of the evidence, a CA is not reasonably satisfied that a claimant has the condition as claimed, it is open to them to find that there is “no incapacity found” (NIF).
Action
Claims Assessors should follow these procedures:
1. The first step is to be reasonably satisfied that the veteran is suffering from a disease or injury as defined in section 5D of the Veterans' Entitlements Act, 1986.
If the condition of the claimant cannot be characterised as an injury or disease pursuant to section 5D of the VEA then the claim must fail.
2. Secondly the claims assessor must be reasonably satisfied as to the diagnosis of that disease or injury. A suitably qualified medical practitioner would provide a description of the symptoms experienced by the veteran and a diagnosis or label to be placed on those symptoms.
3. Thirdly, once the claims assessor is reasonably satisfied that the veteran exhibits identifiable symptoms which can lead a suitably qualified medical practitioner to label the disease or injury, he or she must identify a Statement of Principles (SOP) which encompass those symptoms. The relevant SoP can be identified by reference to the description of the kind of disease found in the SoP.
NOTE: A condition cannot be rejected based only on the description of the disease found in the SoP as the Federal Court has held that the use of the discretion in this way in not lawful. HOWEVER, OTHER DIAGNOSTIC TOOLS SUCH AS DSM IV CAN BE USED.
If there is a SoP in force for the kind of disease or injury suffered by the veteran, that SoP must be applied.
1. Once these issues have been resolved the claims assessor is to determine the claim pursuant to the Guideline CM 5017-Application of s.120, following the Full Federal Court case in Deledio.
2. If there is no SoP in force the claims assessor must ascertain whether or not the Repatriation Medical Authority (RMA) has notified that it intends to carry out an investigation into the particular disease. If the RMA does plan to undertake an investigation, the claims assessor cannot determine the claim until a SoP has been determined.
3. If there is no SoP regarding the type disease or injury and the RMA has not notified that it intends to conduct an investigation into the particular disease or injury then the claims assessor can determine the claim under the Bushell/Byrnes test. That is:
(a) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(b) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(i) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(ii) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Carolyn Spiers
Branch Head
Veterans' Compensation
December 2004