Alexander and Repatriation Commission - [2002] AATA 575

DECISION AND REASONS FOR DECISION [2002] AATA 575

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/458, Q2000/678

VETERANS' APPEALS DIVISION       )        and Q2001/231
           Re      HUBERT JOACHIM ALEXANDER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr EK Christie, Member

Date12 July 2002
PlaceBrisbane

Decision In relation to Q2000/458: The Tribunal affirms the decision under review. In relation to Q2000/678 and Q2001/231: The Tribunal sets aside the decisions under review and in substitution therefor decides that the applicant, Hubert Joachim Alexander, is entitled to pension payable to him at the Special Rate. The earliest date of effect is 11 October 2000.

..................(Sgd)........................
EK Christie
Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - veteran assessed at 100% of the General Rate - whether entitled to Special Rate - assessment.

Veterans' Entitlements Act 1986 ss 24(1)(c), 120(4)

Repatriation Commission v Sheehy (1995) 133 ALR 654
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Magill v Repatriation Commission [2002] FCA 744
Polivitte Ltd v Commercial Union Assurance PL [1987] 1 Lloyds Rep 379
Cavell v Repatriation Commission (1988) 9 AAR 534
Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

12 July 2002 Dr EK Christie, Member

This is an application by Hubert Alexander to review the following decisions of the delegate of the Repatriation Commission:

(a)Q2000/458:   A decision of the Veterans' Review Board ("the Board") dated 1 February 2000 which determined that osteoarthrosis of the knees, right ankle and right foot, lumbar spondylosis and migraine were not war-caused and pension continued at 100%.
(b)Q2000/678:   A decision of the Board dated 21 June 2000 which continued pension at 100%.
(c)Q2001/231:   A decision of the Board dated 14 February 2001 which continued pension at 100%.

At the hearing, Mr J Griffiths of Counsel represented Mr Alexander. The respondent was represented by Mr M Smith, a Departmental Advocate.
The Tribunal had before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the various documents tendered by the parties.
Oral evidence on behalf of the applicant was given by Mr Alexander and Stephen Stockell. Dr S Goode, a specialist in occupational medicine, gave expert opinion evidence on behalf of the respondent.
Issues to be Decided
The only issue for the Tribunal to decide was whether Mr Alexander was entitled to pension payable to him at the Special Rate. It was common ground between the parties that only the application of subsection 24(1)(c) of the Veterans' Entitlements Act 1986 was in dispute.
At the commencement of the hearing, the parties agreed that the earliest date of effect, should the applicant succeed, be the date the business was sold – 10 October 2000.
The following conditions of Mr Alexander have been accepted as war-caused:
(a) With effect from 11 December 1998:
· bilateral sensori-neural hearing loss with tinnitus;

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 Alexander and Repatriation Commission

Details

AGLC: Alexander and Repatriation Commission [2002] AATA 575
Case: [2002] AATA 575
Decision Date: 12 July 2002

CaseChat Overview and Summary

In the matter of Repatriation Commission v Alexander, the court addressed the issue of entitlement to a Special Rate pension under the Veterans' Entitlements Act 1986. The veteran in question, Mr Alexander, had been assessed at 100% of the General Rate and argued that he should also be entitled to the Special Rate. The Repatriation Commission contested this claim, contending that Mr Alexander was not entitled to the Special Rate based on the lack of medical evidence that he was capable of working 20 hours per week prior to selling his business.

The court was required to determine whether Mr Alexander was entitled to the Special Rate pension. This involved examining the evidence, specifically the expert opinion of Dr Goode, and applying the relevant sections of the Veterans' Entitlements Act 1986. The court also had to consider whether Mr Alexander's war-caused conditions were the sole factors preventing him from undertaking remunerative work, or whether non-war service conditions also played a role.

The court found that Dr Goode's expert evidence, which integrated clinical examination with quantitative measurements, provided an objective and unbiased opinion regarding Mr Alexander's capacity for work. The court gave significant weight to Dr Goode's opinion that Mr Alexander's war service conditions were dominant and sufficient to prevent him from returning to any work environment, including those prior to 1988. Dr Goode highlighted the psychiatric condition as the most significant disability, noting that it would impede Mr Alexander's ability to cope in a general workplace environment.

The court concluded that Mr Alexander's war-caused conditions were the primary factors preventing him from undertaking remunerative work, and thus, he was entitled to the Special Rate pension. The court's decision was based on the integration of clinical evidence and the application of the relevant statutory provisions, ensuring that the findings were made to the "reasonable satisfaction" of the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was Mr Smith's contention that Mr Alexander was not entitled to payment at the intermediate rate, up until the time of selling his business, because there was no medical evidence adduced that Mr Alexander was capable of working 20 hours per week up to this time.Consideration of the Issues The Tribunal finds that the opinion evidence of Dr Goode incorporates clinical examination with quantitative measurements, where appropriate, and that his report reviews all existing medical opinion evidence. Because of this integration of these materials, the Tribunal finds that Dr Goode's expert evidence has provided independent assistance to the Tribunal by way of objective, unbiased opinion regarding matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co PL [1987] 1 Lloyds Rep 379 at 386) and should be given weight in the Tribunal's fact finding process. The next issue for the Tribunal to decide relates to the application of subsection 24(1)(c) to all the evidence and information before the Tribunal. In evaluating the factual evidence, the Tribunal has done so in accordance with subsection 120(4)(c) of the Veterans' Entitlements Act 1986. In addition, the Tribunal has determined the factual issues to its "reasonable satisfaction" by applying the approach in Cavell v Repatriation Commission (1988) 9 AAR 534, as referred to in Jackman v Repatriation Commission (supra), that is "…to be guided by commonsense with an 'eye to reality'." Accordingly, the Tribunal considers the four sequential issues identified in Flentjar's case and makes the following findings. The relevant "remunerative work" that Mr Alexander was undertaking within the meaning of subsection 24(1)(b) of the Act was video productions: external camera shoots, video editing, client relations, business administration. The second issue is whether Mr Alexander's war-caused conditions prevented him from undertaking this work. The Tribunal finds, based on Dr Goode's report (Exhibit 4) that this is the case and is made clearly evidence in his report (see paragraph 28). The next issue is whether Mr Alexander's war-caused conditions were the only factors preventing him from continuing to undertake that work. Alternatively, whether there is a possibility that a combination of war service conditions and non-war service conditions prevented Mr Alexander from continuing to undertake that work. The Tribunal has given weight to Dr Goode's opinion evidence (paragraph 28). It is significant that Dr Goode's opinion identifies Mr Alexander's war service conditions as going beyond being simply dominant over the non-war service conditions but are elevated to a significantly higher level. That is, the war service conditions on their own would be sufficient to prevent Mr Alexander from returning to any of his previous work environments, including those activities prior to 1988 [Tribunal emphasis]. Moreover, Dr Goode, in recognising the psychiatric condition as the most important disability, states in his report (Exhibit 4, page 8):"Because of the psychiatric condition, I doubt that Mr Alexander would cope very well at all with the general workplace environment, with the necessary interaction with workmates and Supervisors. He would be irritable in the workplace, with reduced concentration and attention, with the potential to make mistakes. I would see this as cutting across all potential work places."