Adams and Repatriation Commission (Veterans' entitlements) - [2019] AATA 3326

Adams and Repatriation Commission (Veterans' entitlements) [2019] AATA 3326 (6 September 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2626
Re:Stephen Adams
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:6 September 2019
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]...........................................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS – service pension – post-traumatic stress disorder – service related incapacity – pension payable at the general rate – whether the Applicant is entitled to payment of a service at either the intermediate or special rate – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) 6 AAR 113
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox and Repatriation Commission (1997) 45 ALD 317
Jones and Repatriation Commission [2011] AATA 631
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272
Riggs and Repatriation Commission (1986) 11 ALN 114
Smith v Repatriation Commission (2014) 220 FCR 452
Watkins v Repatriation Commission (2014) 142 ALD 106
Wright v Repatriation Commission (2005) 144 FCR 302
Secondary Materials
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
6 September 2019
INTRODUCTION AND BACKGROUND

Mr Stephen Adams (the veteran) seeks a review of the decision of the Veterans’ Review Board (VRB) (Exhibit 1 T28 pp. 219 – 225) affirming a decision of the Repatriation Commission (the Respondent) (Exhibit 1 T25 pp. 205 – 208) to continue the veteran’s disability pension at 70% of the general rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act) – Exhibit 1 T1 pp. 1 - 2.
The issue to be determined is whether the veteran became eligible for an earnings-related rate of pension during the assessment period, which commenced on 19 May 2016. As the veteran has not attained 65 years of age and is in receipt of a pension at 70% of the general rate, he is not eligible for the extreme disablement adjustment – s 22(4).
On 18 June 2016, a delegate of the Respondent decided to continue the veteran’s disability pension at 70% of the general rate. The delegate determined an impairment rating of 37 points and lifestyle effects rating of four points – Exhibit 1 T25 p. 207. The delegate also determined that the veteran was not eligible for either the intermediate or special rate of pension because the veteran had rheumatoid arthritis and obstructive sleep apnoea which contributed to his inability to work, and therefore the “alone test” could not be satisfied – Exhibit 1 T25 p. 208.
On 22 February 2017, the VRB affirmed the Respondent’s decision. The VRB found, firstly, that the veteran’s accepted service-related conditions alone rendered him incapable of undertaking remunerative work for periods of more than eight hours per week, thereby satisfying ss 24(1)(b). However, the VRB went on to find that although the veteran’s rheumatoid arthritis condition had no impact on his inability to undertake remunerative work some time after 12 months from ceasing…

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.

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Details

Case: [2019] AATA 3326
Decision Date: 6 September 2019

CaseChat Overview and Summary

The applicant, Adams, sought to appeal a decision by the Repatriation Commission concerning his entitlement to a service pension at either the intermediate or special rate. The dispute centred on whether his service-related incapacity, specifically post-traumatic stress disorder (PTSD), rendered him incapable of undertaking remunerative work for a sufficient number of hours per week to qualify for these higher pension rates. The matter was heard by Deputy President Sosso P.

The court was required to determine the applicant's capacity for remunerative work in accordance with sections 23 and 24 of the relevant Act. Specifically, the court had to assess whether the applicant's incapacity prevented him from working more than 8 hours per week (under section 24) or more than 20 hours per week (under section 23), and whether this incapacity alone rendered him unable to undertake remunerative work. The court also considered the impact of an ADHD diagnosis on the prognosis for the applicant's PTSD and the relevance of financial necessity in assessing work capacity.

Deputy President Sosso P considered the provisions of sections 23 and 24 of the Act, noting that section 24(1)(b) requires a veteran to be incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, while section 23(1)(b) relates to being capable of undertaking work for more than 20 hours per week. The court acknowledged that the applicant's PTSD was a service-related incapacity. However, the court found that the applicant had demonstrated an ability to undertake remunerative work for more than 20 hours per week during the assessment period, even when he held a certificate of unfitness for work. This was evidenced by his participation in training courses and continued full-time employment. The court also noted that while a medical prognosis suggested potential improvement in the applicant's PTSD due to ADHD treatment, this did not alter the assessment of his capacity during the relevant period.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst it is hoped that Dr Martin’s prognosis for the veteran’s future is correct, nonetheless if that proves not to be case, then at least the veteran will be able in the future to marshal more settled medical evidence to buttress his case.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

While the Tribunal is required to consider s 24 before it turns (if it needs to) to s 23, as the two provisions are drafted in a broadly similar manner, and for ease of convenience in this matter, both can be considered in tandem.CONSIDERATIONCapacity for work – subsections 24(1)(b), 23(1)(b) and section 28 of the Act.Introduction As Tamberlin J observed in Wright v Repatriation Commission (2005) 144 FCR 302 at [15]/308 ss 24(1)(b) and (c) (and by analogy s 23(1)(b) and (c)) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b) “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than 8 hours per week then the condition in s 24(1)(b) is satisfied.” As was explained by Buchanan J in Smith, the primary difference between ss 24(1)(b) and 23(1)(b) is the amount of remunerative work a veteran is rendered incapable of undertaking. Rares J observed in Smith (at [8]/455) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” Consequently, s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In contradistinction, s 23(1)(b) contemplates a veteran being either able to undertake remunerative work for 50% of the time ordinarily worked by persons in work of that kind on a full-time basis or being capable of undertaking work for more than 20 hours per week – s 23(2). It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period, which in this matter commenced on 19 May 2016 when the veteran sought an increase in his rate of pension – Exhibit 1 T23 pp. 187 – 198. There are three elements that need to be satisfied:(a)the veteran has an incapacity which results from a war-caused injury or disease (or both);(b)the incapacity itself alone renders the veteran incapable of undertaking remunerative work; and(c)the incapacity must either prevent a veteran from working more than 8 hours (s 24) or 20 hours (s 23) per week.First element In this matter it is not disputed that the veteran is suffering from an incapacity which is service-related, namely PTSD. During the assessment period there is no evidence of any incapacity resulting from his previously diagnosed, and accepted, Alcohol Abuse condition.Second element There, is, however, no consensus on the other two elements that need to be satisfied. The Respondent submits (SR para 20) that the Tribunal can be reasonably satisfied that the veteran is not incapacitated to undertake remunerative work for either 8 or 20 or more hours per week for the following reasons:“20.1 The Applicant’s vocational, trade and professional skills, qualifications and experience, which would all suggest he could be ‘reasonably expected’ to perform:20.1.1. work of an administrative, financial and/or logistical nature20.1.2. less skilled light manual type work.20.2The Applicant’s incapacity from PTSD cannot be considered permanent given the uncontested evidence of Dr Martin that while the Applicant’s PTSD was previously considered treatment resistant, that is not accurate in light of the ADHD diagnosis, treatment of which means there is likelihood the Applicant’s PTSD would improve.20.3The Applicant’s own evidence to the effect that he is capable of undertaking work and has in fact been engaging in the type of work forming his remunerative work for greater than 20 hours per week throughout the assessment period. While the Applicant made submissions before the Tribunal and gave oral evidence that the only reason he worked was financial necessity, the Respondent submits that financial need is not a relevant consideration to the appropriate test to be applied when deciding entitlement to either the special or intermediate rate of pension having regard to the requirements of ss 23 and 24 of the Act.20.4During the period February 2015 to around August 2015 (and up to February 2016 at the latest), the Respondent accepts that the Applicant had a certificate stating that he was unfit for work. However, following the oral evidence of the Applicant that:20.4.1during this time he able to fly to Melbourne from Cairns to run a training course on logistics in his capacity as a reservist20.4.2. he was able to participate in 2 or 3 days of activities as a reservist and20.4.3 for the approximate 2 month period between the end of February 2015 to April 2015, the Applicant continued to work full time at NQ Pool Supplies despite having received Dr Martin’s medical certificate,it appears the Applicant did in fact demonstrate capacity to undertake remunerative work during the time covered by Dr Martin’s certificate, perhaps not consistently on a full time basis but most likely for greater than 8 or 20 hours per week.”