Sunday, 3 March 2013

10. Through the Looking Glass

I remember a hearing at the Administrative Appeals Tribunal where the veteran’s barrister was putting on his best performance, attempting to explain how merely being on a base in a war zone could be a “severe stressor”, capable of mentally crippling a person for life. Certainly, he submitted, it would be a terrifying experience to be robbed at gunpoint. But what if an escaped convict entered the store, but did not pull out a gun? What if the shopkeeper merely watched him pass by the door? Wouldn’t that be frightening? What if he simply heard on the news that an escaped criminal was roaming the area? In fact, what if there were no specific criminal that he knew of, but he was forced to mind a store in a known high-crime area?
As he moved down the scale, trying to insinuate that the least was as bad as the first, a sense of complete unreality swept over me. I started to think: what if this load of nonsense were put to ordinary people on the street? When the turn came for my submission, I started off: “I feel like I have just walked through Alice’s looking glass, into a world where normal reality is inverted.”
A wry smile came from the Deputy President. “Welcome to the AAT!” he said. He knew it was all an expensive game.
Indeed, the whole of the veterans’ compensation system lies in a world of inverted reality. It is a danger faced by all cohesive organisations, whether political, religious, or social. By constantly discussing, back and forth, the same ideas, thought patterns, and fundamental assumptions, they end up with a world view which they mistake for reality. They forget that there is a world outside which does not think in the same way. Go back to Chapter 7, and the man who was traumatised by being tapped on the shoulder. Or Chapter 10, and the animal fat/prostate cancer story. Do those decisions sound like they were made by people with their feet firmly planted on terra firma?
Up to now you learned the background of how veterans’ law has been perverted. Let us now see how it is applied in practice, by following a claim from initiation to final resolution. Let us step through the looking glass.
Step 1
The process of claims and appeals was originally intended for people who, rightly or wrongly, had a genuine reason for believing their medical problems, or their husband’s death, was due to service. In practice, this applies to only a small minority of claims. What has happened is that veterans have been taught to regard their medical conditions as sources of income. The trick is to find some mechanism by which it can be attributed to service. It may not be possible, but you have to be in it to win it.
It begins when a veteran hears on the grapevine that he may be eligible. (Everything in this chapter, of course, applies equally to widows, but I shall restrict myself to veterans.) Perhaps he hears that one of his friends has just got a similar disease accepted. Of else, he has heard for years about such things at the local R.S.L. or similar ex-service organisation, and when he himself falls sick, he inquires whether he may be eligible as well. Or perhaps another member of the ex-service organisation makes the suggestion to him.
In any case, when he obtains the claim form, the first thing he sees, before even the space for his own name, is the section labelled, “Representative details”. You see, the Department accepted the submissions of the ex-service organisations that every veteran should have a representative, and that the Department should encourage them to obtain one. Indeed, the Department even runs a special training program for representatives, known as TIP, for Training and Information Program. (As the page marked "Acronyms" at the top of this blog reveals, DVA has a penchant for TLAs: three letter acronyms.) For many veterans’ advocates, TIP provides just the knowledge and skills they need to do their job. For many others, it provides the little knowledge which is proverbially a dangerous thing. For a handful, it teaches them how to manipulate the evidence to get what their client wants.
In any case, once the veteran approaches an ex-service representative for help in filling out the form, one thing is practically certain: the representative will persuade him to add several more conditions to the list. Once “Representative details” was placed at the top of the form, multiple claims became the norm, and single item claims shrank to virtual non-existence. One R.S.L. branch is notorious for including at least a dozen, sometimes two dozen – or more! – conditions on each form. Indeed, their pension officers are instructed – and I got this from the horse’s mouth – that, whenever a veteran comes to them to claim anything, they must give him a complete medical rundown, and claim everything. Does he feel anxious or depressed, or worry a lot? Probably due to the war. Do his legs ache? Perhaps it’s peripheral vascular disease due to smoking. Indigestion? Who knows, it could be due to cigarettes or alcohol. Put it down. At his age there is also a reasonably good chance he has a few sunspots on his skin, and can’t perform in bed. Add them to the list. In the end, Joe Veteran won’t have a clue what it is he putting his signature to.
To give them credit, this scattergun approach is highly effective. By the law of averages, a good proportion of these conditions will be accepted without the veteran or his representative doing anything more than filling out a few questionnaires and attending a couple of doctors. But what happens next raises serious ethical questions. When the decision is finally made, a copy goes to the veteran and a copy to the representative. The latter’s instructions are to then advise the veteran to appeal to the VRB – even if there is no obvious way the disease can be related to service, even if the doctor was unable to establish that the disease actually exists. By this time the veteran himself may well have difficulty following what is going on. Not to worry, the pension officer is under instructions to attend the VRB hearing and make out the best case he can. For conditions for which no case exists, he is simply to say they have no submission, but the appeal is not withdrawn. Instead, when the Board rejects it, he must immediately appeal to the AAT, and hand the case over to some hapless lawyer, who must use his valuable time to explain to the bemused veteran why his cause is hopeless.
Of course, not every ex-service organisation acts in such an outrageous fashion, but you get the message. Now, let us examine what happens when the claim lands on the desk of a Claims Assessor, the officer employed by the Department to both investigate and determine the claim in the first instance. And here, we had better state one principle at the outset:
There are many opportunities for making mistakes in the veteran’s favour, and very few for correcting them. Mistakes in the opposite direction, however, will usually be corrected on appeal.
If you ever read a Delegate’s decision you will notice that the format is, to say the least, a little odd. That is because it is written by a computer. I am not kidding. When I was involved in the work, I longed to add the disclaimer: “The human being who made this decision is not responsible for the format of this letter.”
In 1994 the Computer Claims Processing System (CCPS) was introduced to streamline the decision making process. The Claims Assessor codes in the diagnosis, established or provisional, and the system produces the questionnaires to be sent to the doctor and veteran. A Departmental Medical Officer will provide specialist referral letters, and interpret any medical reports, if need be. When all the information is in, the Claims Assessor codes in the smoking history, weights lifted, injuries, dates of onset, and any other details that may be relevant, and the system says yea or nay. It is an extremely useful tool, without which the decision making process would be long and drawn out – as it was in the past. But the operative word is “tool”. Unfortunately, too many officers of the Department allow it to do their thinking for them. It is not even necessary for the Claims Assessor to be familiar with the relevant SoPs, or even read them.
At this point, it is necessary to understand the Department’s career structure. I originally joined as a clerk class 1, and within three months was permanently acting at the class 2 level, but it took several years to move up to the next level. The reasons had less to do with my abilities than the availability of jobs. When another officer gets sick, goes on holidays, acts on higher duties, or is seconded to a special project, someone at a lower level must step up to replace him or her. In this case, there were at least four class 2 positions for every class 1, resulting in regularly occurring vacancies where a class 1 clerk could do higher duties. However, the class 2 positions also outnumbered the class 3 positions four to one, so I had to wait in line while others filled the occasional vacancies at that level. You get the picture? There are other ways to be recruited for a position, but generally it is filled by people who have gained the experience by doing higher duties. The classification with the largest number of positions acts as a magnet, pulling up staff from a lower level, but as a bottleneck for those wishing to advance higher.
From this perspective, the Veterans’ Affairs’ compensation section offers the ideal career pathway. The largest number of positions is that of Claims Assessor, at the class 5 level. Lower levels are grossly underrepresented, so anybody prepared to take a CCPS training course is guaranteed to be find a slot doing higher duties as a Claims Assessor, a slot which will soon become permanent. However, operating a computer system is only one necessary skill. What is really needed is for the trainee to sit beside an experienced officer for several months, learning how to read files, understand the issues, and gain the level of animal cunning to ferret out information from odd corners. This is simply not done. The Department is short staffed; it does not have the facilities. Recently, I heard a top level manager state that it take 18 months to train a Claims Assessor, but fail to mention that no such training is provided. The result is, anybody who becomes an effective Claims Assessor does so by dint his own native ability and experience with hundreds of claims. A few never reach that level.
If you are lodging all but the most straightforward claim, pray that you get an inexperienced officer to handle your case. An experienced officer will read the relevant SoPs and check all the information on all the files before beginning investigations. An experienced officer will tailor the official questionnaires to the circumstances of the claimant, and will seek clarification of the inadequate answers that are commonly provided. An experienced officer will ask embarrassing questions like: how come your recent smoking statement conflicts with what you told a doctor five years ago? or: how could you injure your knee, back, and shoulder all in the one fall? An experienced officer will not try to interpret a complex specialist report, but will ask a Medical Officer what it means. An inexperienced officer will let this all sail by, and press the “yes” button. The result is that a lot of manifestly wrong decisions are made in the veteran’s favour.
Not only that, but they are under pressure. The computerised system makes it easy for management to monitor output, but more difficult to determine whether a decision was right or wrong. The result is that emphasis has always been on quantity at the expense of quality. Pre-CCPS, claims used to take months to determine. Management is now rightly concerned that the average time taken to process claims is kept to a minimum. To make matters worse, the Department of Defence is frequently slow in providing service medical documents, so the Claims Assessor often ends up determining the claim without knowing what medical treatment was received on service. Staff are also expected to complete a certain number of decisions per week. Currently, that means that they have only four and a half hours to investigate each claim. It used to be two and a half hours. That’s not much when a claim covers a dozen conditions.
Upper management is provided with a bucket of money for wages. Veterans’ pensions come from a separate, apparently bottomless, barrel for which no-one in upper management is responsible. Nevertheless, you, the taxpayer, who provides both the bucket and the barrel, may wish to do a bit of arithmetic. Suppose every Claims Assessor was able to spend an extra hour on a claim whenever uncertainties arose. That would incur an extra hour’s wages, plus all the accessories to wages: accrued leave, superannuation, etc. Since staff numbers would slightly expand, one must add a slight increase in rental of office space, telephones, and so forth. Even so, it is hard to see the extra hour costing more than $50. Added to this, the minor expense of extra phone calls or posting, and the big ticket item of another specialist opinion, may bring the total up to a couple of hundred extra dollars. Even so, compared to the lifetime of even an extra 10% to a disability pension, this is chicken feed. And let us not forget that a minor medical condition accepted in error can make all the difference to a later consideration of TPI.
In other words, the government is being penny wise and pound foolish – and it is your pound.
Step 2
Copies of the primary decision will be forwarded to both the veteran and his representative. At this point, if events turned out the way the law envisaged, they would study the reasons closely and, if they reluctantly agreed that they were correct, accept it gracefully. If, however, they discover some error, they would appeal to the Veterans' Review Board (VRB) and give reasons. That’s not how it usually happens.
In the first case, the veteran knows little about the law, or the SoPs, and the computer-written decision reads like a species of double Dutch. Even if every condition has been accepted, his total ignorance of G.A.R.P. means that he has no way of knowing whether the pension assessment is correct. His representative should be better placed, especially if he has had TIP training, but the bottom line is: the veteran has not got the maximum benefits available, and appealing costs nothing. Therefore, the vast majority of decisions are appealed, regardless of merit.
Once the appeal reaches the VRB, the Board will send a letter asking which aspects of the decision are the subject of the appeal. This is in response to a perverse Federal Court decision that all parts of a decision must be assumed to be under appeal unless it is specifically stated otherwise. Even if the veteran never mentions a particular aspect of the decision, even at the VRB hearing itself, it is still under appeal. When the letter is received, the veteran will naturally tick all the squares.
The Department will then produce what is known as the “Section 137 report” (after the section of the Act which requires it), containing copies of all the documents relevant to the original decision, and send reports to the VRB, the veteran, and the representative. They are then supposed to examine the documents thoroughly, provide any extra ones they think are useful, and when the time comes for the hearing, they will all sit down together and discuss them.
The law permits the veteran to obtain medical reports in support of his appeal, and have the Department refund the cost to the tune of several hundred dollars each, regardless of whether the reports are of any use. The rationale is that it will facilitate the early resolution of the appeal. No doubt this made sense in the days before the SoPs. However, these days a specialist medical opinion cannot trump a SoP. It makes no sense, for instance, to have an orthopaedic specialist argue that his patient’s osteoarthrosis could have been due to a particular injury on service, when the SoP requires the injury to have been of a particular severity. Thus, these medical reports – which you, the taxpayer, pay for – tend to fall into two neat categories: those which are irrelevant, and those from tame psychiatrists, which are false.
The Commission still has some feedback into the appeal system. It can intervene under section 31 and accept the veteran’s claim if the Review Officer considers that new evidence warrants it. During the 1980s and ‘90s the Commission used to get concerned about the backlog of cases awaiting VRB hearings, and would send their agents out to accept as many cases under section 31 as humanly possible on the most meagre evidence. The result was that many pensions would granted incorrectly. These days, the Department offers a section 31 review service to any veteran’s representative who asks for it, and makes a submission.
However, the Commission normally undertakes little new investigation. If, for example, a psychiatric disorder has been rejected, it is ten to one the veteran will be sent to a tame psychiatrist for a new diagnosis, preferably of PTSD, and frequently with allegations of a new “stressor” not mentioned to the earlier doctor. If the review officer does not accept this, he will give his reasons, and send it off to the Board, but he will not initiate a new psychiatric consultation, or investigate the alleged stressor. The VRB may do that at a later date, but the Commission doesn’t. So, essentially, tainted evidence is left uncontested.
The law permits the Commission to be represented at the VRB hearing, but from the onset the powers that be decided never to invoke this right. Although the Board members are intelligent and well qualified, they are often presented with dubious evidence and submissions, for which the input of a Commission representative would not go astray. Frequently, the veteran and his representative arrive on the day of the hearing bearing documents which nobody in the Department has ever seen before, let alone had a chance to comment on.
One good point, however: the Board’s decisions are written by human beings, and they are usually very cogent – at least when an appeal is rejected.
Step 3
Once the Board’s decision has been published, the normal response is for the veteran’s representative to send it to a law firm with instructions to lodge an appeal to the Administrative Appeals Tribunal (AAT). Often the veteran himself has only a faint idea of what is going on. (Remember the case of the late Mr B in Chapter 7C.) An appeal costs nothing, so generally it is done as a matter of course, nor do the lawyers vet them when they arrive to see if they have any merit.
I mention this to point out an anomaly. These cases have already had three opportunities to be accepted: by the original Delegate, by a Review Officer under section 31, and by the VRB. All the strong, straightforward cases have been culled out in the process, leaving only the weak ones to be further contested. You would expect, therefore, that only a small percentage would succeed at the AAT. In point of fact, it is just over 50%. Why this should be so, and what is says about the system in general is something you might wish to contemplate.
The actual decision under appeal is not that of the VRB, but that of the original Delegate of the Commission, and the Commission is required to defend it. In the first instance, a bundle of documents similar to that which went to the VRB will be sent to the Tribunal and to the veteran’s solicitor. The case will also be assigned to a departmental Advocate, one of a select group of about a dozen and a half throughout the country. Only a handful of them possess any legal qualifications, but do not be deceived: in the narrow area of law in which they operate, they are at least as good as any of the barristers arrayed against them. However, there is a difference. While the veteran’s lawyers are acting on his instructions, and are required to defend his case come what may, the role of the departmental Advocate is not specifically to defend the Commission’s decision, but to assist the Tribunal in reaching the correct or preferable decision. That may or may not mean persuading the Tribunal that the Commission got it right in the first case. As this was my position for last nine years of my career, I feel some degree of confidence when discussing it.
One thing working as an Advocate teaches you is to forget the popular myths about lawyers. True, I could cite one large firm which used to milk the legal aid cow for all it was worth while training its young recruits from law school in the sort of devious tricks which give lawyers a bad name. But when the rules for legal aid changed, like a great lumbering dinosaur, they could not cope with the changed circumstances, and withdrew from the field. I also have a list of law firms I would not, personally, want to handle my own affairs – not because they are unethical, but because they are incompetent. By and large, however, the lawyers I dealt with were just ordinary people, doing their work as professionally and as ethically as the rest of us. The barristers I regularly clashed with are owed a certain amount of respect, because they have to plead before courts and tribunals on a regular basis, and that is emotionally exhausting work.
So let us look at what happens from the time the appeal lands on the solicitor’s desk. The AAT Act requires that an appeal be in writing, and state the reasons for the application. At this point, you might think, the logical action would be for the solicitor to say to the veteran, in effect, “The Board has provided detailed reasons for its decision. What do you think is wrong with them? (And if you don’t know, what are you coming to me for?)” After all, the veteran was presumed to have made his original claim on the basis of what he considered were valid reasons, so this would be a logical question to ask. But it doesn’t work that way. In any case, the AAT considers the duty of stating reasons is discharged if the applicant merely says, “The Commission’s decision failed to give full consideration to the evidence in support of my claim,” or even simply, “The decision was wrong.”
What happens is that the solicitor has to read the VRB decision, and then the departmental documents, make some assessment of the case, and then talk to the applicant. It is not an enviable position to be in, for up to now he has not received any payment, and the case, by definition, will be fairly weak. Often it means explaining to the applicant why some parts of his claim have very few prospects. Then he must apply for legal aid, providing reasons why his client’s case has at least some chance of success. Legal aid payments are quite low. As a QC once explained to me, the only way to make money out of legal aid is to take a lot of it, and then do as little work as possible – otherwise, a small profit will be turned into a significant loss.
After that, conferences are arranged between the applicant’s solicitor and the Department’s Advocate, supervised by an employee of the AAT, at which the issues are thrashed out, points of differences and agreements are established, and future action discussed. These conferences are “without prejudice” ie nothing said in them can be used in any subsequent hearing. The Department’s Advocate normally has a fairly free rein, but the solicitor cannot bind himself to any position without taking instructions from his client. Strictly speaking, there should be only two conferences, but they often multiple to two or three times that number as further evidence is produced.
Evidence? Hadn’t it all been exhausted at the previous two decision making levels? I remember a speech by a Deputy President of the Tribunal, lamenting the anomaly. In nearly every other field covered by the AAT, he said, it is normally the original evidence which is tested. With Veterans’ Affairs, masses of new material are presented. Nevertheless, it is inevitable. You will remember that the Commission has not had a chance to investigate the material provided to the VRB; now is the time to do so. If, for example, a report from a tame psychiatrist had been presented to the VRB, the Commission’s Advocate will want the opinion of someone more reliable. The veteran’s solicitor may also feel that a specialist opinion is needed to clarify some issue, and request legal aid to obtain it. (The Department is not responsible for the applicant’s expenses in the appeal, but the taxpayer still picks up the tab.) It is not unusual to find that the only witnesses called at a hearing are doctors who had never seen the patient at the first two levels of decision making.
This interlocutory phase before the hearing allows the applicant’s party to fine tune its evidence, even, sometimes, to the extent of manufacturing it. Inevitably, the applicant will be required to make a detailed statement of his or her claim, covering such things as smoking history, work history, the details of an accident, or the stressors on service. Not unexpectedly, the story crystallises into something more or less what the law requires. Often, too, a canny lawyer realises that there are some other aspects of the case have a better chance of success than the ones relied upon at the VRB. This is the reason for the phenomenon recorded in Chapter 7, whereby claimants in psychiatric appeals come up with new “stressors” never mentioned to any previous doctor. The same Deputy President mentioned above also commented that Veterans’ Affairs is the only jurisdiction where a claimant can make one contention at the first level of decision making, another one at the second level, and yet another at the third.
In a third of cases, this process doesn’t work, and the solicitor convinces his client his cause is lost, and should be withdrawn. In a further forty percent of cases, it is the Commission which concedes most or all of what the applicant wants. Considering that these cases were not strong enough to succeed at either the primary level or the VRB, this is a very high percentage. What has happened? You must understand that the standard of proof heavily favours the applicant. Secondly, in a great many cases, the only relevant evidence is that provided by the applicant. After all, how can anyone dispute what he says about when he started smoking, or how many days he suffered pain, tenderness, or loss of mobility after an injury? While the Advocate, watching how the applicant’s story has developed over the years, might be satisfied that it is incorrect, the question remains: how can he convince the Tribunal? He looks back at earlier Tribunal decisions, and realised that the Tribunal tends to be extremely generous, even perverse, in its findings. (Refer back to the fourth paragraph of this chapter.) For the veteran, the bar is set very low. Is there any point at all in the Advocate continuing the fight? Rates of pension are particularly vulnerable to concession. The EDA rate requires an impairment rating of 70, and a lifestyle rating of 6. If the first is met, the tendency is always to fudge the second and give him what he wants.
It used to be worse in the past. In the 1980s and ‘90s, when the backlog of AAT appeals was heavy, the Commission would periodically reduce it by conceding every case with the slightest hint of possibility that it might be successful. The result was that a lot of pensions were incorrectly granted, at great expense to the taxpayer, even if the statistics looked good. And the message went out: if you fight the Department of Veterans’ Affairs long enough, they will give in.
What happens to the one fourth of appeals which go on to a hearing? The law firm must obtain legal aid for the hearing, and that means briefing counsel ie the barrister who will defend the case. In fact, this was almost a universal custom even before it was made a requirement for legal aid. It is also common to “obtain prospects”, that is to obtain an opinion from the barrister as to whether the claim has any chance of success, and if so, what are the cogent arguments. This inevitably raises the question I asked a QC at a training session: “If I, who have no legal qualifications, am able to determine the prospects of a case, and argue it before the Tribunal, why do they need to get a barrister’s opinion? Why can’t their own solicitor do it?”
“What you have to understand,” he replied, “is that, although they have a law degree, they are really just private enterprise bureaucrats, whose job it is to keep the paperwork moving, but when it comes to forming an opinion, they have to go to somebody more qualified. And, and often as not, counsel will say, ‘The case doesn’t look too good. Who’s on the other side? Smith? That bastard never concedes. Perhaps you might have better luck if you try such-and-such…’ The result is that much of their work is stalling, hoping something will turn up, or the Advocate will go on leave, and somebody else more pliable will take over.”
“Well,” said I, “that certainly makes sense of a lot that has happened in my job.”
Proceedings before the AAT are totally different to those before the VRB. At the VRB, no witnesses are called except the applicant himself, who just as often states his case by telephone. No evidence is challenged, though the Board members may ask for clarification of statements which appear dubious. Anybody attending an AAT hearing, however, would be forgiven for thinking he was in an informal court. Court dress, such as wigs, are not in use, but everything else is similar.
The applicant is represented by a barrister, assisted by a solicitor, who takes notes and prompts him if necessary. The Department’s Advocate acts alone. The law states that the Tribunal is not bound by the established rules of evidence but, in practice, they tend to follow them. The documents relied upon are tendered, and witness are put to an oath or affirmation. Evidence in chief is given when the witness is initially called and questioned by the person (barrister or Advocate) who called him. This is one of the hardest parts of the proceedings, because leading questions are not allowed, and if the witness doesn’t say everything you need him to say, you are stuck. After that, the other side cross-examines him. Then the first party re-examines the witness – but only on matters raised in cross-examination.
The Advocate might know from experience that the applicant’s doctor is a hired gun who will say whatever is required of him, but he cannot say that. He can only hope that the Tribunal has also had enough experience of him to form the same opinion. He may know that a particular doctor was once prosecuted for fraud, but was let off because of a nervous breakdown, and that another once provided evidence to save a wanted criminal from extradition - as was the case of two witnesses I have regularly clashed with. However, if he so much as raised the issue, the applicant’s barrister would immediately object, and the Tribunal would sustain the objection. If the applicant said anything to the VRB which would injure his case, the Advocate must bring the transcript of the VRB hearing and put his actual words to him. The VRB keeps tapes of its hearings for only two years, so if he said something at an earlier hearing – tough! It cannot be used as evidence.
As a general rule, documents for which the author is not called for cross-examination are assumed to be uncontested. Individual Tribunal members have different views about what needs to be proved, and what can be accepted as common knowledge. One member, for instance, was not prepared to accept without evidence that unemployed people over sixty have difficulty finding jobs.
Over the years, one recognises the quirks of individual Tribunal members. There was one who used to launch tirades against the parties. At one hearing it would be the Commission’s Advocate who bore the brunt of the abuse, at the next it would be the veteran’s barrister. A couple of members were astute most of the time, but at others they would take a sudden bias towards a veteran’s case, and nothing would shift them. One member is a very friendly, likeable person, but there are times when he is determined to find in favour of the applicant, no matter what. As mentioned in the last chapter, after one hearing, he instructed me to look for further information in support of the applicant. In another, he accepted the appeal by means of an hypothesis neither I nor the opposing barrister had even thought of. (Both these actions were of questionable legality.) Another tends to be more generous than other members, but is inconsistent. One day he will accept a claim, and a few months later reject a very similar one.
In other words, the Administrative Appeals Tribunal is a kangaroo court. As such, it leaves the citizen little optimism concerning the workings of other kangaroo courts (such as the various “anti-discrimination” and “human rights” bodies, which are intuitively biased towards the plaintiff.)
No, this is not sour grapes on my part. The cases which reach the Tribunal are, by definition, too weak to concede and too strong to be withdrawn. One would expect that roughly half of them will be successful, and this is not far wrong. But the fact is, representatives of both sides can tell prior to the hearing whether the appeal has a fighting chance. The problem is, many of the patently lost causes do unexpectedly succeed. Take, for example, the case of M, referred to in Chapter 7. Here was a man claiming a lifetime of angst from the most trivial of events, and it came as no surprise when the appeal failed. Yet, when he came back before another Tribunal, he succeeded. “You thought we’d just roll over, didn’t you,” the Senior Member said to the flabbergasted Commission Advocate.
Every time some outrageous claim succeeds, it becomes a rallying point of everybody with a similar claim, and a precedent for any ex-service advocate or lawyer seeking to push the boundaries of the law. These days, it is relatively easy to access precedent case law, because the Australasian Legal Information Institute reports all the decisions on the internet. (Those of the Administrative Appeals Tribunal can be found on here.) However, a word of advice: the Tribunal’s reasons for decision commonly understate the strength of the Commission’s case. Time and again I have made a submission at a hearing, giving half a dozen or more good reasons why the appeal should fail. The Tribunal, I am sure, weighs all of them, but when the time comes to publish the decision, it will list only a couple of the most cogent ones, and definitely fail to mention any which might involve legal principles. The point, of course, is that appeals to the Federal Court can be made only on legal grounds, not the interpretation of facts.
On the other hand, if the Tribunal is determined to make a perverse decision in the applicant’s favour, it will not publish the Commission’s arguments in full, let alone refute them. At best, it will mention them briefly in passing, so that it cannot be said that it failed to consider them. This has happened so many times, it is impossible to accept it as accidental. Instead, I shall merely describe the most egregious example.
As you will recall from Chapter 8, section 24(1)(c) requires that the veteran be prevented from continuing to work due to his A/Ds alone. Therefore, when a self-employed deliveryman ceases work after injuring his foot in a workplace accident on 10 June (which, fortuitously, is close to the end of the financial year), you would assume he was out of the running for TPI. Not so, he insisted. True, he did state on several occasions that he had ceased on 10 June, but that was while his foot was still sore. It got better, and he returned to work. However, his war-caused PTSD was getting worse. He was being paid in cash, so that no records were kept for tax purposes. But his PTSD got so bad that his psychiatrist (who had moved, and was unavailable to give evidence) finally told him to close the business early in the following year.
And the Tribunal believed him. A reading of the Tribunal’s decision almost makes it sound plausible. What you will not read in the decision are the following facts:
  • He changed his story about the degree to which he relied on a casual employee. That, by itself, should have alerted the Tribunal that he was playing fast and loose with the truth.
  • He gave 10 June as the date he ceased work, not a few times, but twenty times, the last one two years after the event.
  • Although his foot did get better, there was evidence two years after the event that it was still bad.
  • His tax records for the following financial year revealed not only an absence of income, but hardly any expenses for fuel, indicating that he was no longer driving his van.
  • It was established, beyond a shadow of a doubt, that the psychiatrist who allegedly advised him to give up work did not see him until after the date when he himself claimed to have left the workforce.
  • As the Deputy President put it, “Welcome to the AAT!”