Baird and Repatriation Commission

Case [2002] AATA 784

DECISION AND REASONS FOR DECISION [2002] AATA 784

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/731
VETERANS' AFFAIRS DIVISION
  Re:         John Baird
  Applicant
  And:       Repatriation Commission
  Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member, Dr. P. Lynch, Member
Date:             10 September 2002
Place:            Sydney

Decision:The decision under review is affirmed.

[SGD] Mr P.J. Lindsay
  Senior Member

ORDER TO AMEND WRITTEN DECISION

TribunalMr P.J. Lindsay, Senior Member

Date25 September 2002

PlaceSydney

WHEREAS:

  1. The Tribunal released a written decision in this matter, which was dated 10 September 2002.

  2. It has come to the Tribunal's attention that there was an error in the decision as to the rate of pension.

  3. The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS:

(a)       That the decision of the Tribunal as recorded should read as follows:

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant should be paid pension at 100 per cent of the General Rate from and including 25 March 1999.

(b)That paragraph 58 of the reasons for decision should read as follows:

It follows that Mr Baird is not entitled to Special Rate of pension, but as the Commission has conceded a pension assessment at 100 per cent of the General Rate, the decision under review should be set aside.  In substitution for it, the Tribunal decides that Mr Baird is eligible for pension at 100 per cent of the General Rate from 25 March 1999.

[SGD] P.J. Lindsay
  Senior Member

CATCHWORDS Veterans' entitlements – disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone.
Veterans' Entitlements Act 1986 – ss.19, 24, 25, 28 and 120.
Cavell v Repatriation Commission (1988) 9 AAR 534
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Forbes v Repatriation Commission (2000) 171 ALR 131
Fry v Repatriation Commission (1997) 47 ALD 776
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Chambers v Repatriation Commission (1995) 36 ALD 207
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Flentjar v Repatriation Commission (1997) 48 ALD 1
Turnbull v Repatriation Commission, Federal Court, 21 May 1997, 421/1997
The Guide to the Assessment of Rates of Veterans' Pensions, 5th edition, Department of Veterans' Affairs, Canberra, 1998

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

  1. This is an application by Mr John Baird, the applicant, for review of a decision by the Repatriation Commission (the Commission) of 9 February 2000, which was affirmed by the Veterans' Review Board on 19 February 2001.  The Commission's decision was to accept, with effect from 25 March 1999,…

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Baird and Repatriation Commission [2002] AATA 784
Case
[2002] AATA 784
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) in Baird v Repatriation Commission involved the determination of Mr. Baird's entitlement to a special rate of pension under the Veterans' Entitlements Act 1986. The primary issue was whether Mr. Baird was totally and permanently incapacitated due to war-caused conditions, rendering him unable to undertake remunerative work for periods aggregating more than eight hours per week. Mr. Baird claimed that his incapacity was due to alcohol dependence and depressive disorder, both attributed to his service in the military.

The Tribunal was required to assess Mr. Baird's eligibility for the special rate of pension, focusing on whether his incapacity was both total and permanent. This involved considering Mr. Baird's vocational background, skills, and the nature of his incapacity. The Tribunal examined evidence of Mr. Baird's military service, his subsequent employment history, and his physical and mental health conditions. Key to the decision was the interpretation of section 24 of the Act, which specifies the criteria for eligibility for the special rate of pension, including the requirement that the incapacity must be due to a war-caused condition and that it must be total and permanent.

The Tribunal concluded that Mr. Baird's incapacity was not total and permanent because it was influenced by factors other than his war-caused conditions. Mr. Baird's history of alcohol abuse and depression, while exacerbated by his service, were not the sole reasons for his inability to work. The Tribunal found that Mr. Baird's personal choices, lifestyle, and the progression of his health conditions played significant roles in his current state. Given these findings, the Tribunal determined that Mr. Baird did not meet the criteria for the special rate of pension under section 24 of the Act. The Tribunal's decision was based on a comprehensive assessment of the evidence provided and the relevant legal provisions.

In light of the Tribunal's determination, Mr. Baird was not entitled to the special rate of pension. The Tribunal's decision was made to the reasonable satisfaction of the Tribunal, in accordance with section 120(4) of the Act. The matter was thus concluded with the Tribunal upholding the Repatriation Commission's initial decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Commission concedes that Mr Baird is entitled to a pension at 100 per cent of the general rate. The Tribunal must decide whether Mr Baird is entitled to pension at the special rate or, alternatively, whether he is entitled to temporary payment at special rate.evidence Mr Baird's evidence was that, following his discharge from the Army, he went to New Zealand for about 12 months. He worked there as a carpenter on high rise buildings and towards the end of his stay, his work included the construction of home units. He returned to Brisbane and found work as a carpenter. Over the course of the next few years, he moved around Queensland from job to job doing carpentry and also worked in Darwin. He said that initially he did not have much trouble picking up work. At times, he remained out of work for some months, by choice. After he completed his job at Expo 88 in Brisbane he had a long time off. During that period out of work he said he did a lot of drinking and also went fishing. In 1989 he was injured in a motorbike accident and broke his right tibia and injured his knee. Mr Baird has a shortened leg as a result. He had physiotherapy treatment. His doctor suggested he visit the Commonwealth Rehabilitation Service. He was rehabilitated and retrained. Through that agency, in 1991 he found employment, training apprentices. There was not any physically demanding work involved, since the apprentices had to do everything themselves, Mr Baird said. Although not able to be definite, Mr Baird believes he remained in that work for about two years until his heavy drinking intervened. Mr Baird said that around 1993 he found regular work again, building houses and in unit construction. Apart from a couple of weeks' break at the end of some jobs, he was in that type of work for about two years. During periods of work, he said, he would drink only on the weekend and would not overdo it. It was around 1990 that Mr Baird moved in with his father, who was then in poor health, to look after him. His father died in 1994 and Mr Baird stayed in his father's house until it was sold as part of the deceased estate. He then moved to Beenleigh. Mr Baird has not worked in paid employment since December 1995. Towards the end of his carpentry career, Mr Baird was working more in a supervisory role. When asked why he decided not to look for another job after December 1995, when his last contract finished, Mr Baird said that he could not go on with it. He said he lost all his concentration and did not want to do anything. This led him, about a month after finishing his last job, to sell all his tools because he could not look at them and did not want anything to do with his work. Then there was a period of some months when he lived on an island in Moreton Bay and fished. He received unemployment benefits and sickness benefits for approximately two years. During this time, he did an odd job for a friend and built an internal stairway. For no apparent reason, Mr Baird decided to go to Lightning Ridge in the outback in November 1997. This was a time when he was drinking very heavily. While at Lightning Ridge he continued to drink a lot. His health was such at this time that he started to receive the meals on wheels services. On 20 July 1999 Ms Sandra Thomas, a mental health worker at the Lightning Ridge Health Service, recorded that Mr Baird presented to accident and emergency on 12 June 1999 (Exhibit R6). He was depressed, unable to sleep, had mixed up feelings and suicidal thoughts. Ms Thomas observed Mr Baird over a four week period and found him to have poor appetite and sleeping patterns and to be depressed. She noted a history of alcohol abuse over many years. The history noted no previous admission to a psychiatric hospital. Dr Hanna, a general practitioner in Lightning Ridge, requested a cranial CT scan. The radiologist's report of 29 July 1999 noted that the ventricular system of the brain appeared not to be compressed and to be normal in outline. There was no evidence of recent lesion or haemorrhage (Exhibit R6). Dr Hanna's clinical note for 6 August 1999 recorded "Previously a carpenter: - had to stop - 4 years ago, due to back problem.. Scoliosis" (Exhibit R6). A radiology request by Dr Hanna dated 6 August 1999 referred to back pain and scoliosis. The radiology report by Dr Hunter dated 10 August 1999 noted the following: Thoracic spine. There is a thoraco-lumbar scoliosis centred at the thoraco-lumbar junction, convex to the right. …Comment. Degenerative disc changes at L5-S1. Compared to the previous examination, these changes have progressed. (Exhibit R6)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Godwin submitted that it could be difficult for someone with a significant back problem to work in any of those areas. By reference to various clinical notes and medical reports he submitted that Mr Baird has a significant back condition. It was submitted that Mr Baird's back condition contributes significantly to his incapacity for work and therefore he fails the test in s.24(1)(c).CONSIDERATION AND FINDINGS The criteria governing eligibility for special rate of pension are in s.24 of the Act. Eligibility for the special rate of pension is determined during the "assessment period": s.19 of the Act. In this application, the assessment period starts from the day that Mr Baird claimed his pension, 25 June 1999, and continues until determined. The Tribunal notes the dictum of Pincus J in Repatriation Commission v Braund (1991) 23 ALD 591 (at 595) that the "critical question" about eligibility under s.24 is not to be determined at the date that the veteran retired. There is no dispute between the parties regarding the matters covered in s.24(1)(aa), (aab) and (a). The Tribunal is satisfied that Mr Baird lodged a claim for disability pension on 25 June 1999, he was under 65 at that time and that his degree of incapacity under s.21A of the Act has been assessed to be at least 70 per cent. In an application such as the present, s.120(4) of the Act provides that the Commission, and therefore the Tribunal in its stead, must decide the matter or make a determination "to its reasonable satisfaction". In Repatriation Commission v Smith (MJ)(1987) 74 ALR 537 the Court held that this introduced the standard of proof required in civil litigation, that is, reasonable satisfaction upon the balance of probabilities. Section 24(1)(b) In relation to s.24(1)(b) the Commission argued that Mr Baird is not permanently incapacitated. Reference was made to the improvement that Mr Baird was making in relation to his depression. Dr Lewin noted Mr Baird's recognition of clinical improvement regarding his depressive symptoms and in his opinion Mr Baird's situation was quite fluid. On 3 December 1999, Dr Smyth was unsure whether Mr Baird's alcohol abuse/dependence and major depressive illness would be temporary conditions. The Tribunal notes that the Commission has accepted that Mr Baird is incapacitated due to the war-caused condition of alcohol dependence with depressive disorder. Is Mr Baird's incapacity from that condition total and permanent? The provision describes the nature of that total and permanent incapacity being such that it renders the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours a week. In determining whether Mr Baird is incapable of undertaking remunerative work for that length of time, the Tribunal must have regard to, firstly, his vocation, trade and professional skills, qualifications and experience: s.28 of the Act. Mr Baird has trade qualifications and long experience as a carpenter. Referees have attested to his broad knowledge of the construction industry and allied trades, his acting as a foreman and also his training of apprentice carpenters (T11). The Tribunal observes that, following his stint as a trainer of apprentice carpenters while undertaking rehabilitation, Mr Baird worked during 1993 to December 1995 in hands-on, physical carpentry, building houses and in unit construction. The Tribunal is mindful of the opinion dated 3 April 1991 of Dr Walsh, clinical psychologist, who assessed Mr Baird's intellectual capacity as being more than adequate for his successfully undertaking clerical work or tertiary studies (T17). A reference from the Commonwealth Rehabilitation Service noted that Mr Baird successfully completed three of the four requisite subjects in Associate Diploma of Applied Science (Building). Having regard to his qualifications, skills and experience, the kinds of remunerative work that Mr Baird might reasonably undertake should not be narrowly confined: Chambers v Repatriation Commission (1995) 36 ALD 207.