Amourous and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 40

Amourous and Repatriation Commission (Veterans’ entitlements) [2016] AATA 40 (29 January 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2014/4097

Re

John Amourous

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott RFD

Date 29 January 2016

Place Brisbane
The Tribunal:

(a) affirms the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate; and

(b) remits to the respondent the question of whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided for in s 22(4) of the Veterans’ Entitlement Act 1986 (Cth). If the applicant is entitled to the Extreme Disablement Adjustment, that benefit is only payable from when the applicant satisfies s 22(4)(b) of the Act.
........................[Sgd]................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – rate of disability pension – special rate – whether war-caused injury or war-caused disease “alone” prevented veteran from continuing to undertake remunerative work – accepted conditions of Posttraumatic Stress Disorder, Ischaemic Heart Disease, Sensorineural Hearing Loss, Tinnitus, Alcohol Abuse/Dependency and Lumbar Spondylosis – no evidence accepted conditions played any part in preventing applicant from engaging in remunerative work – “alone” test not satisfied – whether Extreme Disablement Adjustment – special rate decision affirmed – matter remitted to respondent for consideration of Extreme Disablement Adjustment.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth), ss 19, 22, 23, 24, 25, 28
CASES
Repatriation Commission v Watkins [2015] FCAFC 10
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 January 2016
INTRODUCTION

On 14 October 2011, the applicant lodged a claim for an earnings-related rate of pension. On 24 November 2011, a delegate of the respondent determined that the disability pension of the applicant should be increased to 100% of the general rate with effect from 14 July 2011. On 7 May 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 31 July 2014, the applicant lodged an application to this Tribunal for a review of that decision by seeking a special rate of pension.
BACKGROUND
The applicant seeks a pension at a special rate for conditions that are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his statement dated 29 August 2014, outlined his last employment since the time when he was discharged from the Navy in 1987. The applicant was working for a labour hire company as a supervisor which he states was “a demanding position, but well within the skills and ability I possessed, with the possible exception of my computer skills”. The applicant, while serving in the Navy, gained trade qualifications as well as commissioned rank. He commenced work with that company in late December 1999. He states that by September 2009 his marriage and general relationships were seriously damaged. He also states that his ability to concentrate on the…

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.

Keep reading for free

Create a free CaseChat account to read Amourous and Repatriation Commission (Veterans’ entitlements... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] AATA 40
Decision Date: 29 January 2016

CaseChat Overview and Summary

The matter under consideration involved a veteran who had applied for a special rate of pension under the Veterans’ Entitlements Act 1986 (Cth). The veteran's claim was based on his service-related conditions which included Posttraumatic Stress Disorder, Ischaemic Heart Disease, Sensorineural Hearing Loss, Tinnitus, Alcohol Abuse/Dependency, and Lumbar Spondylosis. The applicant argued that these conditions alone prevented him from engaging in remunerative work, thus qualifying him for the special rate of pension.

The primary legal issue before the court was whether the veteran's incapacity from his war-caused conditions alone rendered him incapable of undertaking remunerative work, as required by section 24(1)(c) of the Act. The court had to determine if the veteran satisfied the "alone" test, which necessitates that the war-caused injury or disease alone must prevent the veteran from continuing remunerative work. The court also had to consider whether the veteran qualified for the Extreme Disablement Adjustment under section 22(4) of the Act.

The court examined the evidence presented and found that while the veteran suffered from multiple war-caused conditions, there was no evidence to suggest that these conditions alone prevented him from engaging in remunerative work. The court relied on the principle established in Repatriation Commission v Watkins, where the Full Court of the Federal Court of Australia held that if any non-war-caused factors contribute to preventing the veteran from engaging in remunerative work, the "alone" requirement is not satisfied. Given the applicant's personal circumstances, such as the deterioration of his marriage and social relationships, which contributed to his inability to continue work, the court concluded that the "alone" test was not met.

The Tribunal affirmed the decision of the Repatriation Commission that the applicant was not eligible for the special rate of pension. However, the matter was remitted to the respondent to reassess whether the applicant is entitled to the Extreme Disablement Adjustment under section 22(4) of the Act. The benefit, if applicable, would only be payable from when the applicant meets the criteria under section 22(4)(b) of the Act.

Orders

Orders of the court

The Tribunal:

(a) affirms the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate; and

(b) remits to the respondent the question of whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided for in s 22(4) of the Veterans’ Entitlement Act 1986 (Cth). If the applicant is entitled to the Extreme Disablement Adjustment, that benefit is only payable from when the applicant satisfies s 22(4)(b) of the Act.

Background

Background to the litigation

On 14 October 2011, the applicant lodged a claim for an earnings-related rate of pension. On 24 November 2011, a delegate of the respondent determined that the disability pension of the applicant should be increased to 100% of the general rate with effect from 14 July 2011. On 7 May 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 31 July 2014, the applicant lodged an application to this Tribunal for a review of that decision by seeking a special rate of pension.BACKGROUND The applicant seeks a pension at a special rate for conditions that are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his statement dated 29 August 2014, outlined his last employment since the time when he was discharged from the Navy in 1987. The applicant was working for a labour hire company as a supervisor which he states was “a demanding position, but well within the skills and ability I possessed, with the possible exception of my computer skills”. The applicant, while serving in the Navy, gained trade qualifications as well as commissioned rank. He commenced work with that company in late December 1999. He states that by September 2009 his marriage and general relationships were seriously damaged. He also states that his ability to concentrate on the tasks at hand was severely impacted and that was most obvious on work sites with high occupational health and safety requirements. LEGISLATION To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:Special rate of pension(1) This section applies to a veteran if:(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab) the veteran had not yet turned 65 when the claim or application was made; and(a) …(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; …(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; … To be eligible for pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and s 23(2) of the Act provide:Intermediate rate of pension(1) This section applies to a veteran if:…(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; ...(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking — if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The evidence suggests that there has been a deterioration of the accepted orthopaedic conditions of the applicant after he made his claim. This is because in April 2013 the applicant had a surgical procedure on his back. The more appropriate and economical course of action is for this application to be remitted to the respondent to determine whether the applicant is now entitled to the Extreme Disablement Adjustment. This would require an assessment of all of the accepted conditions of the applicant. This would give the applicant the opportunity to make submissions on whether he satisfies s 22(4)(c) of the Act. If the applicant is entitled to the Extreme Disablement Adjustment, that benefit is only payable from when the applicant satisfies s 22(4)(b) of the Act. DECISION The Tribunal affirms the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate and remits to the respondent the question of whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided for in s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

The applicant’s accepted conditions are Posttraumatic Stress Disorder, Ischaemic Heart Disease, Sensorineural Hearing Loss, Tinnitus, Alcohol Abuse/Dependency and Lumbar Spondylosis. CONSIDERATION At the conclusion of the hearing the applicant was granted an adjournment to enable the production of more documentation. The applicant did not then make final submissions on the merits of his case and has indicated that he does not intend to make any final submissions. I will consider the case that is put forward by the applicant having regard to the applicant’s Statement of Facts, Issues and Contentions dated 20 April 2015.[1] In that document the applicant has squarely raised the following contentions:(i) “The applicant maintains that had he not been suffering from his war caused conditions he would have continued to work and would not be suffering from a loss of salary, wages or earnings” at para 18; and(ii) ”The applicant refers to and relies on the statement of the Applicant dated 7 November 2014 with which he attached a variety of documentation confirming that he genuinely sought remunerative work” at para 20.In these reasons I will outline my conclusions upon these contentions which were also put forward in the opening of the applicant.[1] Cf.,Repatriation Commission v Warren [2008] FCAFC 64 at [92] per Logan J. I have to determine whether the applicant is eligible for a pension at special rate. The applicant applied to the respondent to have his pension increased in accordance with s 24 of the Act, which provides for a "[s]pecial rate of pension" to be paid where the applicant would satisfy certain criteria. There is no issue that the applicant satisfies s 24(1)(aa) or s 24(1)(b) of the Act. The one criteria in contention is (often referred to as the “alone” test) in s 24(1)(c) of the Act that "the veteran is, by reason of incapacity from ... war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…" Recently, in Repatriation Commission v Watkins,[2] the Full Court of the Federal Court of Australia referred to decisions of Repatriation Commission v Richmond,[3] Repatriation Commission v Hendy[4] and Repatriation Commission v Butcher[5] and reaffirmed the settled principle that “if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied”.[6] [2] [2015] FCAFC 10.[3] (2014) 226 FCR 21.[4] (2002) 76 ALD 47.[5] (2007) 94 ALD 364.[6] [2015] FCAFC 10 at paragraph [41]. The last remunerative work that was disclosed by the applicant in the employment history in his claim form was his work at the labour hire company. The evidence before the VRB was that the applicant sold his home in Springwood in September 2009 and took leave from his employer in October 2009 and moved to Queensland. In giving evidence before this Tribunal the applicant outlined the reasons why he decided to sell up in Sydney and move to Queensland. The applicant explained: Well, as I put in my statement, our marriage was in severe difficulties by that stage. I figured that maybe if we – there was a lot of background in my behaviours around the place in like going to the local tavern all the time. I quite often wound up in arguments in the local tavern with people. The result of that flowed sort of into the community, which I didn’t really think about at the time but it’s since come to pass that it also had a great effect on my wife’s social life as well ... People – in our area, you know, people knew and my wife felt that friends were starting to really drift away from us. So, taking these things into consideration, I thought we may be better to just leave this all behind and go somewhere else and make a – try and make a new start.

Division	VETERANS' APPEALS DIVISION
File Number	2014/4097
Re	John Amourous
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President Dr P McDermott RFD
Date	29 January 2016
Place	Brisbane