ANDREW McDONALD and REPATRIATION COMMISSION - [2012] AATA 164

[2012] AATA 164

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2062

Re

ANDREW McDONALD

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
The Hon Robert Nicholson and Dr A Frazer, Member

Date
15 March 2011

Place Perth

Decision:
1.The decision of the Veteran’s Review Board made on 11 May 2011 be set aside.

2.There be substituted for that decision a decision that the applicant is entitled to the special rate of pension.

...(sgd) Hon Robert Nicholson...........
Deputy President
Catchwords
Veteran’s Affairs - Disability Pension – Special rate – whether applicant was alone prevented by reason of incapacity from war-caused injury or disease from continuing to undertake remunerative work that he was undertaking-effect of evidence.
Legislation
Veteran’s Entitlements Act 1986 (Cth) s 24(1)(c).
REASONS FOR DECISION
15 March 2012

On 23 April 2010 the applicant applied for increase in his rate of disability pension. On 29 June 2010 a delegate of the respondent determined that the applicant’s disability pension should continue at 100% of the General Rate. On 6 July 2010 the applicant applied for review of the delegate’s decision by the Veterans’ Review Board. On 11 May 2011 the Board affirmed the delegate’s decision. On 30 May 2011 the applicant applied for review of the Board’s decision by the Administrative Appeals Tribunal.
RELEVANT STATUTORY PROVISIONS
The relevant statutory provision for a special rate of pension is s 24 of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’). It is common ground that the applicant has satisfied s 24(1)(a) and (b). That is that the applicant has a degree of incapacity of at least 70% and is totally and permanently incapacitated, that is his 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.
The issue remaining on this application is whether the applicant can satisfy s24(1)(c) which provides:
‘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.’
PRIOR DECISIONS
In Flentjar v Repatriation Commission (1997) 48 ALD 1 a Full Court ( Beaumont, Branson and Merkel JJ) said that the issues before a tribunal in the matter before it were fourfold, namely:
‘1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to…

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: [2012] AATA 164
Decision Date: 15 March 2011

CaseChat Overview and Summary

Andrew McDonald and the Repatriation Commission were before the court in a case concerning a veteran's disability pension. The central issue was whether Mr McDonald qualified for the special rate of pension due to his war-caused incapacity, specifically post-traumatic stress disorder (PTSD). The Repatriation Commission argued that McDonald's non-accepted disabilities did not materially prevent him from working, whereas McDonald contended that his PTSD alone prevented him from continuing his remunerative work.

The court had to determine whether McDonald's incapacity from his war-caused injury or disease was the sole factor preventing him from continuing his work. This required a thorough analysis of the evidence presented, particularly the medical opinions regarding McDonald's capacity to work. Drs Fellow-Smith and Spear testified that McDonald could work no more than 8 hours per week due to his PTSD, while Dr Wan's report, which was not supported by oral testimony, suggested McDonald could work between 8 and 20 hours per week from a physical perspective. The court had to weigh this conflicting evidence to decide if McDonald's condition was the sole impediment to his employment.

After careful consideration, the court found that the overwhelming weight of the evidence supported McDonald's claim. The court noted that Dr Wan's unsupported evidence could not outweigh the credible testimony of Drs Fellow-Smith and Spear, especially since it did not account for the impact of McDonald's PTSD. The court concluded that McDonald's PTSD alone prevented him from continuing his remunerative work, thereby qualifying him for the special rate of pension. The decision of the Board was set aside, and a new decision was substituted in favour of McDonald.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His opinion was that the applicant cannot work more than 8 hours per week and that this was the result of his PTSD condition.EVIDENCE OF CONSULTANT OCCUPATIONAL PHYSICIAN The respondent introduced into evidence a report of Adjunct Professor K C Wan, Consultant Occupational Physician. Dr Wan was not available to give evidence, being overseas, and the respondent did not seek any adjournment as a consequence. Dr Wan’s opinion expressed in his report was that the applicant’s accepted disabilities do not prevent him from working in his kind of work for more than 8 hours per week. This was an opinion expressed in relation to the applicant’s prospects from the ‘physical perspective,’ given that the effect of the applicant’s mental health lay outside Dr Wan’s expertise. He considered that the applicant could work for between 8 and 20 hours per week from a physical perspective. His view was that the applicant’s rejected disabilities would reduce his work capacity to a moderate extent because of restricted movement associated with pain. He proposed the applicant work from a physical perspective so he has sufficient function and mobility to enable him to perform light duties in sedentary or office based administrative/clerical duties or retail sales.REASONING In closing submissions the respondent accepted that the evidence Drs Fellow-Smith and Spear was that the applicant is unable to work for more than 8 hours per week due to his psychiatric condition, that is his PTSD. The respondent accepted that the evidence of Dr Wan was unsupported by oral evidence and, in any event, was confined to the applicant’s physical perspective. The respondent therefore submitted that it was open to the Tribunal to find the applicant was entitled to the special rate of pension. It would be applicable from 23 April 2010. In closing submissions for the applicant it was submitted that the evidence establishes that the applicant’s non-accepted disabilities do not prevent him materially from work. In the case of references to pain experienced by him on driving during his external work, this was a reference to his recognized condition of lumbar spondylosis rather than his non-accepted condition of cervical spondylosis. If was said that the evidence showed the job he was doing was not restricted by the non-accepted disabilities. This evidence was inconsistent with the Wan evidence. Construing the evidence with an eye to reality – Cavell v Repatriation Commission (1988) 9 AAR 539 - it was established that if it were not for the applicant’s PTSD he would still be working. Therefore the applicant qualifies for the special rate. In our view, the overwhelming weight of evidence is in favour of the applicant qualifying for the special rate. Dr Wan’s evidence was not supported orally and cannot outweigh the evidence of Dr Fellows-Smith and Dr Spear. Furthermore, it does not consider the effect of the applicant’s PTSD.CONCLUSION For these reasons we consider that the decision of the Board should be set aside and a decision substituted that the applicant is entitled to the payment of his pension at the special rate.

Decision

Reasons for decision

The issue remaining on this application is whether the applicant can satisfy s24(1)(c) which provides:‘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.’PRIOR DECISIONS In Flentjar v Repatriation Commission (1997) 48 ALD 1 a Full Court ( Beaumont, Branson and Merkel JJ) said that the issues before a tribunal in the matter before it were fourfold, namely:‘1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4. If the answers to question 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?’ In the present application the central question is the third of those referred to in Flentjar. However, the resolution of that question requires reference to the evidence relevant to the nature of the remunerative work that the veteran was undertaking. In Repatriation Commission v Smith (1987) 15 FCR 327 a Full Court (Northrop, Beaumont and Spender JJ) held that the requirement in s 120(4) of the Act that ‘the Commission shall…decide the matter to its reasonable satisfaction’ was intended to introduce the civil standard of proof. That provision appears as s 120A(4) of the Act as it relevantly applies in this application. As Beaumont J stated at 335 in reasons concurred in my the other members of the Full Court, ‘there is…a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.’ In Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 a Full Court (Whitlam, Emmett and Stone JJ) said in relation to the requirements of s 24(1)(c):‘The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.’APPLICANT’S HISTORY

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2062
Re	ANDREW McDONALD
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	The Hon Robert Nicholson and Dr A Frazer, Member
Date	15 March 2011
Place	Perth