Baker and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 857

Baker and Repatriation Commission (Veterans’ entitlements) [2016] AATA 857 (31 October 2016)

Division

VETERANS' APPEALS DIVISION

File Numbers

2014/5872

2014/5873

Re

David Baker

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 31 October 2016

Place Sydney
Application 2014/5872

1.    The reviewable decision, being the decision of the Repatriation Commission made 16 May 2014 refusing Mr Baker’s claim in respect of ischaemic heart disease, is set aside.

2.    In substitution it is decided that ischaemic heart disease suffered by Mr Baker on 27 December 2013, was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

3.    The date of effect is 21 November 2013.

Application 2014/5873

1.    The reviewable decision, being the decision of the Veterans’ Review Board made 16 September 2014 assessing the rate of pension payable to Mr Baker at 80% of the General rate with effect from 25 July 2012 and 90% of the general rate with effect from 9 July 2013, is set aside.

2.    The matter is remitted to the Repatriation Commission for reconsideration in accordance with these reasons for decision.

..................[sgd]......................................................
J W Constance
Deputy President
CATCHWORDS
VETERANS AFFAIRS - entitlements - ischaemic heart disease - whether disease is defence-caused - clinical onset of disease - whether disease connected to the service rendered - decision set aside and substituted.

VETERANS AFFAIRS - entitlements - disability pension - claim for payment at the special rate - whether war-caused disease alone rendered the veteran incapable of undertaking remunerative work for more than 8 hours per week – claim for payment at the intermediate rate - whether war-caused disease alone rendered the veteran incapable of undertaking remunerative work other than part-time or intermittently - decision set aside and remitted.

LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 22, 23, 24, 28, 70, 120(4), 120B, 196B(14)

CASES
Chambers v Repatriation Commission (1995) 55 FCR 9

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Richmond [2014] FCAFC 124
Re Robertson and Repatriation Commission (1998) 50 ALD 668

Smith and Repatriation Commission [2014] FCAFC 53

SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease, No. 90 of 2007

REASONS FOR DECISION
Deputy President J W Constance
31 October 2016
PART 1: INTRODUCTION

On 21 February 2014 Mr Baker applied for his ischaemic heart disease to be accepted as a service-related condition in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claims he has suffered, and continues to suffer, the condition arising out of his service as a member of the Royal Australian Navy.
On 16 September 2014 the Veterans’ Review Board affirmed the decision of the Repatriation Commission (made on 16 May 2014) refusing to accept the claim. The Board also decided that Mr Baker’s correct rate of pension (based on other accepted conditions) was 80% of the General rate with effect from 25 July 2012 and 90% of the General rate with effect from 9 July 2013. Mr Baker sought an increase in his pension to the Special…

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: [2016] AATA 857
Decision Date: 31 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Baker, who sought to have his ischaemic heart disease accepted as "defence-caused" and claimed payment of a disability pension at the special or intermediate rate. The dispute centred on whether Mr Baker's conditions arose out of his defence service and, if so, the extent to which these conditions alone rendered him incapable of undertaking remunerative work.

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr Baker's ischaemic heart disease was "defence-caused" within the meaning of section 70 of the relevant Act, which requires the disease to have arisen out of, or be attributable to, defence service. Secondly, the Tribunal had to assess whether Mr Baker's accepted conditions, specifically his post-traumatic stress disorder and major depression, alone rendered him incapable of undertaking remunerative work for more than eight hours per week (for the special rate) or other than part-time or intermittently (for the intermediate rate), as stipulated by sections 24(1)(b) and 24(1)(c) of the Act.

In relation to the claim for the special rate pension under section 24(1)(b), the Tribunal found that Mr Baker's psychological conditions, while significant, did not alone render him incapable of undertaking remunerative work for periods aggregating more than twenty hours per week. The Tribunal preferred the evidence of Dr Chase, an occupational medicine specialist, over that of Dr Altman, a psychiatrist, in assessing Mr Baker's vocational capacity. The Tribunal noted that Mr Baker was able to engage in some paid employment, socialise, and participate in sport, and that his previous long-term employment suggested his anger and frustration issues were not so severe as to preclude sustained work. Consequently, Mr Baker did not meet the requirements for the special rate pension. The Tribunal also considered, but did not ultimately rely upon for the final outcome, the requirements for the intermediate rate under section 24(1)(c), which concerns being prevented from continuing remunerative work due to incapacity.

The Tribunal set aside the previous decision regarding the rate of pension payable to Mr Baker and remitted the matter to the Repatriation Commission for reconsideration in accordance with its reasons. This indicated that while the specific claims for the special and intermediate rates were not met on the current findings, the broader entitlement to a pension and its assessment would be re-evaluated.

Orders

Orders of the court

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Background

Background to the litigation

The decision in relation to the rate of pension payable to Mr Baker will be set aside and remitted to the Repatriation Commission for reconsideration in accordance with these reasons for decision.PART 2. BACKGROUND Mr Baker was born on 22 March 1950. He served as a member of the Royal Australian Navy from 14 July 1965 until 13 July 1985. Mr Baker suffers from several medical conditions which have been accepted by the Commission as having arisen from his service. Included in these conditions are post-traumatic stress disorder and depressive disorder which arose from an incident which occurred in 1984. After Mr Baker retired from the Navy in 1985 he was employed in a number of roles, the details of which are set out later in these reasons. He resigned from the last of these positions on 22 March 2010, being his 60th birthday. Mr Baker says that he resigned “due to constant frustration arguing with both the workers and Management.”[1][1] Exhibit A1 p.2. Mr Baker says that from about 1985 onwards he suffered feelings of anger and frustration which interfered with his home life and his work. However, it was not until August 2012 that he sought professional help in regard to these problems. At that time he consulted Dr Altman, Consultant Psychiatrist. Dr Altman diagnosed Mr Baker as suffering chronic post-traumatic stress disorder and major depression. He prescribed medication for Mr Baker which has resulted in a lessening of his symptoms. Mr Baker has continued to consult Dr Altman on a regular basis. In December 2013 Mr Baker was hospitalised and diagnosed as suffering ischaemic heart disease. Apart from limited part-time work at his local RSL Club, Mr Baker has not been engaged in paid employment since 22 March 2010.PART 3APPLICATION 2014/5872: THE CLAIM TO HAVE ISCHAEMIC HEART DISEASE ACCEPTED AS “DEFENCE-CAUSED”A. LEGISLATIONA.1 Defence-caused disease Section 70 of the Act sets out the circumstances in which a disease is taken to be "defence-caused". The relevant parts of that section are:(5)For the purposes of this Act …… a disease contracted by [a member of the Forces] …… shall be taken to be a defence-caused disease if:…….(a)the …… disease …… arose out of, or was attributable to, any defence service… as the case may be, of the member;……..A.2 Standard of proof when claimed disease said to have arisen out of, or was attributable to, “defence service” Subsection 120(4) provides:Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Neither subsection (1) nor subsection (2) applies in this matter. Subsection 120B(1) provides:This section applies to any of the following claims made on or after 1 June 1994:(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.

Evidence

Evidence Before The Court

Mrs Baker said that Mr Baker was initially “a happy-go-lucky person, a great husband and father, and life was good for many years.” She described the change in his behaviour after he left the Navy as follows:As the years went by, he became very withdrawn and moody, there were many times the boys and I were walking on eggshells, afraid of saying or doing the wrong thing and setting off an unreasonable reaction. There were quite a few times I contemplated leaving because life was so stressful. He was extremely intolerant and often flew off the handle for seemingly no good reason at all.……Life has improved markedly since then, [being the time Mr Baker was prescribed antidepressants in 2012] as Dave is much calmer now and doesn’t get agitated or upset anywhere near as much as he did previously.Evidence of Dr Altman, Consultant Psychiatrist Dr Altman has been Mr Baker’s treating psychiatrist since August 2012. He provided reports dated 17 December 2012,[14] 9 April 2014[15] and 12 August 2014.[16][14] Exhibit R1 p.26.[15] Exhibit R3 p.171.[16] Exhibit R3 p.182. In his report of 17 December 2012 Dr Altman noted a number of symptoms from which Mr Baker had suffered from around 1989 and which, in his opinion, were indicative of chronic post-traumatic stress disorder. He also reported that Mr Baker presented with features indicative of an intermittent major depression which he had experienced for periods over approximately 20 years. On average Mr Baker experiences depression twice a year for approximately 2 months on each occasion. Dr Altman further reported:In summary, in my opinion as result of the above mentioned traumatic event which occurred in India in approximately 1983, Mr Baker suffers from a chronic Post-traumatic Stress Disorder with an intermittent Major Depression and Alcohol Abuse.[17][17] Exhibit R1 p.28. On 9 April 2014, Dr Altman reported that Mr Baker’s symptoms of post-traumatic stress disorder were severe. In his report of 12 August 2014 Dr Altman stated:I have discussed the matter of his intermittent Major Depression in more depth with him.Since the traumatic incident in 1983 regarding the scare charges, Mr Baker has been suffering from a Major Depression. Since then he has had “trouble sleeping”, he has felt “angry” and he has been “feeling low”. In addition since then for example he has suffered from low energy and low confidence and motivation. However approximately twice a year this Major Depression becomes more severe for approximately two months on each of these occasions.Therefore in summary Mr Baker suffers from a Major Depression since the traumatic event in 1983. This Major Depression becomes more severe approximately twice a year for approximately two months.Since 1983 he has not had periods where he feels normal and happy as he used to.Discussion I accept the evidence of Dr Altman who has been treating and observing Mr Baker on a regular basis since 2012. On this basis I am satisfied that Mr Baker has suffered from both post-traumatic stress disorder and major depression since 1984. Although the major depression was initially described by Dr Altman as “intermittent”, in his last report he indicated that the depression was ongoing, but worsened on a regular basis for periods of approximately two months.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In reaching his conclusions, Dr Chase took into account that Mr Baker is able to do some paid work at his local RSL Club and to socialise and play sport outside his home environment.Consideration On the basis of the evidence of Mr Baker, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of an electrical engineer/maintenance officer and as a salesman. Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Baker has previously undertaken. In considering the degree to which Mr Baker’s accepted conditions have reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of the medical practitioners to whose evidence I have referred. Having considered all of the evidence, I am satisfied that Mr Baker’s psychological conditions are of such a nature as, of themselves alone, to render Mr Baker incapable of undertaking remunerative work for periods aggregating more than twenty hours per week. I am satisfied that Mr Baker is able to work more than eight hours per week. In reaching this conclusion I have preferred the evidence of Dr Chase to that of Dr Altman. Although Dr Altman is one of Mr Baker’s treating practitioners, his specialty is in psychiatry. On the other hand, Dr Chase’s specialty is in occupational medicine. I have also taken into account, as did Dr Chase, that Mr Baker is able to engage in some paid employment, he is able to play sport and to socialise outside his home and is an active member of his local RSL Club. Dr Altman gave evidence that Mr Baker’s psychiatric condition had improved following treatment. This was confirmed by the evidence of Mrs Baker. It was confirmed also by the evidence of Mr Baker who said that he worked until he was eligible for the service pension.[31] At the time he ceased work for his last employer, Mr Baker had been continuously employed in that position for 11 years. I infer from this that any difficulties he experienced in controlling his anger and frustrations were not serious enough for his employer to end their relationship.[31] Transcript 09/05/16 p-18. As Mr Baker does not meet the requirements of subsection 24(1)(b) he is not entitled to be paid the pension at the special rate.E: DOES MR BAKER MEET THE REQUIREMENTS OF SUBSECTION 24(1)(c)? Although the conclusion I have reached in relation to subsection 24(1)(b) means that section 24 does not apply in this case, in view of the arguments put by the parties I will proceed to consider subsection 24(1)(c). Subsection 24(1)(c) provides:(1) This section applies to a veteran if:……(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…

Division	VETERANS' APPEALS DIVISION
File Numbers	2014/5872 2014/5873
Re	David Baker
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	31 October 2016
Place	Sydney