Adams and Repatriation Commission - [2002] AATA 475

DECISION AND REASONS FOR DECISION [2002] AATA 475

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/621

VETERANS' APPEALS DIVISION       )
           Re      Bruce James Adams
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date19 June 2002
PlaceSydney

Decision Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(1) To set aside the decision under review in respect of impotence and in substitution therefor the Tribunal decides that this condition is war-caused pursuant to Section 9 of the Veterans' Entitlements Act 1986 with effect from and including 13 September 1996. (2) The assessment of the correct rate of pension in relation to all of Mr Adams' accepted conditions from 13 September 1996 until 31 March 1998 is 60 per cent of the General Rate. (3) To affirm that part of the decision under review which assessed pension at 100 per cent of the General Rate from and including 1 April 1998. ……………………… Ms SM Bullock Presiding Member

CATCHWORDS
VETERANS' AFFAIRS - Entitlement to Disability Pension – Assessment - Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 24, 119
AUTHORITIES
Carter v Repatriation Commission (2001) 66 ALD 139
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Thomson v Repatriation Commission (2000) 96 FCR 550
Woodward v Repatriation Commission (1999) 58 ALD 675
Grant v Repatriation Commission [1999] FCA 1629
Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

19 June 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Bruce James Adams, the Applicant, of decisions by the Repatriation Commission ("the Commission") made on:

(a) 31 May 1997 which refused a claim for medical treatment and pension for incapacity for sterility and impotence on the ground that the conditions were not war-caused and increased pension to 40 per cent of the General Rate with effect from 13 September 1996;
(b) 2 October 1998, which increased Mr Adams' Disability Pension to 100 per cent of the General Rate with effect from and including 1 April 1998.

The Commission's decisions were affirmed by the Veterans' Review Board ("the Board") on 10 February 2000 (T31). At the hearing on 27 September 2001, Mr Adams withdrew his application for review in relation to the condition of sterility. In relation to the condition of impotence, the Respondent conceded at the commencement of the hearing that this condition was war-caused.
A hearing was held before the Tribunal in Sydney on 27 September 2001 and 25 October 2001. Mr Adams provided oral evidence to the Tribunal and was represented by Mr P Jones, Solicitor with Rockliffs, Solicitors and Attorneys. The Respondent was represented by Ms S Breuer, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administration Appeals Tribunal Act 1975 ("T Documents", T1-T33) and the following exhibits:
Exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams and Repatriation Commission

Details

AGLC: Adams and Repatriation Commission [2002] AATA 475
Case: [2002] AATA 475
Decision Date: 19 June 2002

CaseChat Overview and Summary

In the case of Adams and Repatriation Commission, the central issue was whether the applicant, Mr Adams, was entitled to a Disability Pension and, if so, at what rate. The dispute arose from a decision by the Repatriation Commission, which had assessed Mr Adams' eligibility for a pension based on his military service and subsequent health conditions. The Federal Court was called upon to review this decision, focusing on whether the Commission had properly applied the relevant statutory provisions and whether it had given adequate consideration to all relevant evidence.

The primary legal issues that the court needed to address included whether Mr Adams' psychiatric condition was a result of his military service and warranted a pension, the appropriate rate of pension considering his employment status and income, and whether the Commission had correctly interpreted and applied the legislative criteria in assessing Mr Adams' entitlement. A key consideration was the extent to which Mr Adams' post-service employment and income should influence the pension assessment, particularly given his assertion that he preferred to work rather than rely on a pension.

The court examined the evidence provided by Mr Adams, including his employment history, his assertion that he viewed his work as full-time employment, and his medical evidence. It also considered the medical reports that diagnosed Mr Adams with severe chronic post-traumatic stress disorder and major depression due to his service in the Korean War. The court found that the Commission had failed to adequately address the impact of Mr Adams' psychiatric condition on his ability to work and had not properly considered his continuous efforts to engage in employment, albeit on a part-time basis. The court concluded that the Commission had not given sufficient weight to the totality of Mr Adams' circumstances and that his employment, while part-time, did not negate his entitlement to a disability pension. Consequently, the court found in favour of Mr Adams and remitted the matter back to the Commission for reassessment.

The final orders of the court directed the Repatriation Commission to reassess Mr Adams' entitlement to a Disability Pension, taking into account the court's findings and the need to appropriately weigh his employment and income against his psychiatric condition. The court emphasised that the reassessment should reflect a more comprehensive understanding of Mr Adams' situation, ensuring that all relevant factors, including his military service and ongoing health issues, were fully considered.

Orders

Orders of the court

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Background

Background to the litigation

Section 119 of the Act reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or the deficiency in records.Background The following information is provided by way of background and the information contained within is not disputed: Mr Adams provided a statement to the Tribunal (Exhibit A4) outlining his employment history. In February 1963, he took up a position of New South Wales Training Officer for Australian Consolidated Industries and served in this capacity and more senior training and safety officer positions until 1967-68. Mr Adams set up the training function and occupational health and safety functions for the company. He later helped out in similar functions in Victoria and Queensland. In 1967 or 1968, Mr Adams had the position of National Director of Training for the timber industry with the Australian Timber Producers Council for a two year period. In 1970, Mr Adams took up the position of Director of Training with the New South Wales Timber Advisory Council. In this position, Mr Adams developed internal and external courses with the main emphasis being on middle management, supervisory levels and on salesmanship. Mr Adams was also asked to help larger companies to set up their training and safety functions. In late 1972, Mr Adams was offered a senior position as Director of the entire New South Wales Timber Advisory Council. This position had overall responsibility for industry promotion, advertising, research and development and training and safety. During this period, Mr Adams stated that he was experiencing bouts of depression and a number of alcohol-related problems. Later, Mr Adams was asked to take up a new position of Assistant Manager for the "Trade Association- Associated Country Sawmillers" (Exhibit A4, p6, paragraph 5). He noted that this position was especially created for him in order that he obtain trade association experience before taking over the role of Chief Executive Officer when the current manager of that organisation retired in two years. Following a two year period, the positions of Manager and Chief Executive Officer were combined and the New South Wales timber industry was restructured into branches. This restructure took Mr Adams and those involved approximately two years to achieve. He also had, during that time, direct responsibility for training which was always close to his heart. During his period as Director of the Timber Advisory Council, Mr Adams said that his main difficulties, health-wise, related to his deafness and to some extent his left leg problem. Mr Adams noted that his psychiatric problems related to his Korean service were increasing and were a constant distraction. In 1976, Mr Adams became the Chief Executive Officer of the Associated Country Sawmillers Trade Association with the New South Wales Timber Advisory Council remaining under his control. Having taken up this position, Mr Adams believed it was obvious that this arrangement could only be in existence in the short term to medium term at the longest.

Evidence

Evidence Before The Court

Mr Adams concluded in terms of the way he had completed various claim forms with the Department of Social Security and the Department of Veterans' Affairs that he had always taken "employment" and "work" to mean full-time work. He did not set out to obtain to any benefit that he was not entitled to receive. He acknowledged that there were some questions that he had not interpreted in the way that he should have. He did acknowledge that he had taken his income to the limit rather than bringing it down. He would have liked to have been able to earn full wages and not have to rely on a pension. Income was not as important to him as being able to work a full 38 to 40 hour week or seven days a week as is required in small business activities. Mr Adams stated that he had tried on a number of occasions to increase his hours past eight hours but he could not do it. (Transcript, 27-09-2001, p103). Dr Altman had told him that he should not be working five hours and that Mr Adams should not be working at all. Mr Adams stated that he could not take this advice because if he was not busy he would be remembering his time in Korea. He did not wish to be confronted with those memories. Thinking about the business did not involve a great deal of activity - just thinking. Mr Adams stated that activities such as researching on the Internet is saved for times when he is being paid. Mr Adams further informed the Tribunal that he works on a "continuous improvement objective" and everything he does he tries to do better the next time. He plans to keep the company going and knows that the Workplace Relations name itself has value because people are trying to buy it from him. In recent times, he has established ownership of the name "workplace relations.com.au" and "Work-Pending-Workplace-Relations.vus". These names are very valuable, Mr Adams stated and he wanted to think of the business growing into a "monstrous enterprise" so that he could stand back and look at what he started as a baby. He tries not to dwell on these ideas too much however.MEDICAL EVIDENCEEvidence Of Dr G Altman, Consultant Psychiatrist Dr Altman provided a report dated 18 August 1999 (T29). Dr Altman noted that Mr Adams served in the Korea war from 1951 until 1953 for a total of twenty months. Dr Altman noted that Mr Adams saw people being killed and wounded and had in fact been wounded twice himself. He had seen numerous corpses and had to pull out the wounded and dead on a number of occasions. Dr Altman opined that as a result of Mr Adams' experiences during the Korea War, he suffers from a severe chronic post traumatic stress disorder with an associated major depression. In Dr Altman's further opinion, Mr Adams' psychiatric impairment under Table 4 of the "Guide to the Assessment of Veterans' Pensions" 5th Edition ("the Guide") is 52 points. Dr Altman concluded that as a result of his psychiatric disorder alone, Mr Adams is totally and permanently unfit to work and should be placed on the "T& PI" disability pension.Dr D K Dowda, Consultant Occupational Physician

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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