Barnes and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1385

Barnes and Repatriation Commission (Veterans' entitlements) [2017] AATA 1385 (29 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/1426
Re:Phillip Barnes
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:29 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
VETERANS’ ENTITLEMENTS — application for Special Rate of pension – where Applicant was assessed as entitled to disability pension at 100% of the General Rate – where Applicant had a number of accepted and non-accepted conditions – whether Applicant satisfied the alone test – whether ameliorating provisions applied to Applicant – whether Applicant eligible for pension at the Intermediate Rate – decision under review affirmed
Legislation
Veterans' Entitlements Act 1986
Cases
Owen v Repatriation Commission (Owen) (1995) 59 FCR 93
Repatriation Commission v Smith (1987) FCA 260
Repatriation Commission v Hendy (2002) 76 ALD 47
Secondary Materials
Guide to the Assessment of Rates of Veterans' Pensions 2016
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
29 August 2017
INTRODUCTION

Mr Phillip Barnes is 64 years of age and served with the Royal Australian Air Force (RAAF) from 26 April 1971 until 31 December 1992 as a Clerk / Auditor, achieving the rank of Sergeant. He suffers from a number of accepted medical conditions for which he receives a Full Treatment Disability Pension at 100% of the General Rate.
On 20 March 2014 Mr Barnes applied for an increase in his disability pension in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act).[1] He contended that his previously-accepted disabilities had worsened and concurrently claimed a new disability, namely a ‘right ankle problem.’
[1] T-documents dated 19 April 2016 and hereafter referred to as Exhibit R1, pp.1-21.
On 20 May 2014 a delegate of the Repatriation Commission accepted Mr Barnes’ claim for his right ankle problem, determining that the appropriate diagnosis was ‘Old Fracture of Right Malleolus (Ankle).’[2] The delegate refused his application for an increase in pension to either the Special or Intermediate Rate, finding that Mr Barnes had ceased work due to reasons other than his accepted disabilities, and had non-accepted disabilities impacting upon his ability to undertake remunerative employment.[3] The delegate also determined that because Mr Barnes was under 65 years of age, he was not eligible for the Extreme Disablement Adjustment. The effect of the delegate’s decision was that Mr Barnes’ disability pension was continued at 100% of the General rate.
[2] Exhibit R1, p.77.
[3] Exhibit R1, p.82.
Mr Barnes’ application was reviewed by the Veterans’ Review Board (VRB), which affirmed the Commission’s decision on 18 November 2015.[4] Mr Barnes has asked the Administrative Appeals Tribunal to review the VRB decision. The only issue in dispute before the VRB and before this Tribunal on review is whether Mr Barnes is entitled to receive pension at the Intermediate or Special rate.
[4] Exhibit R1, pp.B2-B7.
For the reasons that follow, the decision under review is affirmed.

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: [2017] AATA 1385
Decision Date: 29 August 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Barnes for a pension under the *Veterans' Entitlements Act 1986* (Cth). The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Barnes was entitled to a pension at either the Special or Intermediate Rate, having regard to his defence-caused disabilities and his capacity for remunerative work. The AAT also considered whether Mr Barnes was eligible for an Extreme Disablement Adjustment.

The primary legal issues before the AAT were whether Mr Barnes was totally and permanently incapacitated for remunerative work, such that his defence-caused incapacity alone rendered him incapable of undertaking work for more than eight hours per week, pursuant to section 24(1)(b) of the Act. Additionally, the AAT had to determine if Mr Barnes satisfied the "alone test" under section 24(1)(c) of the Act, which requires that his cessation of work and inability to engage in remunerative work be solely due to his service-caused incapacity. The eligibility for the Intermediate Rate of pension under section 23 of the Act was also in contention.

The AAT considered the medical evidence from various practitioners, including Dr Horsley, Dr Prestage, and Dr Fotakis, as well as Mr Barnes' own evidence regarding his work capacity. The Tribunal found that while Mr Barnes had accepted defence-caused disabilities, the incapacity arising from non-accepted conditions affecting his feet was a substantial cause of his resignation from work and his ongoing inability to obtain employment. Consequently, Mr Barnes did not satisfy the criteria for total and permanent incapacity under section 24(1)(b) or the "alone test" under section 24(1)(c). Furthermore, he was found ineligible for the Intermediate Rate of pension.

The AAT affirmed the decision under review, finding Mr Barnes ineligible for pension at either the Special or Intermediate Rates. He was also found ineligible for an Extreme Disablement Adjustment as he had not attained 65 years of age.

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

In the week prior to the hearing of this matter, I was advised of the VRB’s decision dated 16 July 2017, regarding a separate application by Mr Barnes to have pes planus (flat feet) accepted as a defence-caused condition. In that matter, the VRB set aside the decision of the Commission, substituting its decision that ‘pes planus right foot and left foot sprain’ were defence-caused disabilities.[8] I have included these newly-accepted disabilities in my consideration of Mr Barnes’ application. [8] Exhibit A5.EVIDENCE This matter was heard in Melbourne on 7 August 2017. The Applicant was represented by Mr Dino De Marchi, a solicitor of De Marchi and Associates. The Respondent was represented by Mr Ken Rudge, a solicitor of the Department of Veterans’ Affairs Review Branch. The documents admitted into evidence at the hearing were: Mr Barnes gave oral evidence and was cross-examined. He stated that during his RAAF career he had performed accounts and clerical roles, before deciding to accept a redundancy offer following an amalgamation of the clerk-supply categories. His work history after leaving the RAAF encompassed roles as a clerk with O’Brien Glass, as a factory hand at a glass factory, as a tipstaff with the County Court, and lengthier roles as a part-time attendant with the Victorian Racing Commission (VRC), and in a casual market research role with Millward Brown. His duties at Millward Brown included door-to-door visits, shopping centre surveys, and office-based functions as a team leader with responsibility for 3-4 staff. His duties as a part-time course attendant at Flemington Racecourse involved management of patron movement in the car parks and within the course itself. Mr Barnes submits that from 2006 onwards his back pain worsened and ‘progressed down [his] legs and feet.’ He contends that when sitting down during breaks he would fall asleep from fatigue, which was subsequently diagnosed as Sleep Apnoea. He states that by 2012, the issues he was having ‘with sleep apnoea, [his] feet, shoulder, pain in [his] back’ were requiring frequent visits to the doctor ‘every few weeks,’[9] and his ability to stand for longer periods of time was increasingly compromised. Mr Barnes contends that he stopped working in March 2014 because of his accepted disabilities alone, as recommended by his general practitioner. He was 61 years old when he resigned from his roles at the VRC and Millward Brown.[9] Exhibit A1. Mr Barnes submits that his doctor considered him ‘not fit for any employment.’[10] In that regard I note correspondence dated 18 February 2014 from Dr John Fotakis, Mr Barnes’ general practitioner for over ten years, in which he states that Mr Barnes’ condition is ‘permanent’ and he had advised him to ‘consider ceasing work.’ I also note the medical report by consultant orthopaedic surgeon Mr Vasudeva S. Pai dated 24 April 2014, which states that ‘presently [Mr Barnes] has no plans to return to work.’ [10] Exhibit R1, p.19.

Decision

Reasons for decision

The evidence shows that incapacity arising from non-accepted conditions affecting Mr Barnes’ feet was a substantial cause of his resigning from work, and remains a substantial cause of his inability to obtain work despite his genuine efforts to do so. Mr Barnes does not satisfy section 24(1)(b) or section 24(1)(c) of the Act relating to the Special Rate of pension. He is also ineligible for the Intermediate Rate of pension because he does not satisfy section 23(1)(c), or the ameliorating provisions of section 23(3)(b) of the Act. He is therefore not eligible to be paid pension at either the Special or Intermediate rates. DECISION It therefore follows that the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Right Knee. At the hearing Dr Horsley stated that in her consultation with Mr Barnes, she noted he had clinical evidence of ‘mild to moderate wear and tear’ in his right knee, crepitus, and that he experienced discomfort intermittently. She said that the problems with his back and feet, however, were the major issues affecting Mr Barnes. I accept Dr Horsley’s evidence that Mr Barnes’ right knee problem did not have a significant effect in relation to the type of work he was undertaking at the VRC and Millward Brown, and does not impact her assessment regarding his ability to undertake clerical type work for under 20 hours per week.CONSIDERATIONExtreme Disablement Adjustment Because Mr Barnes has not attained 65 years of age, I find he is ineligible for EDA in accordance with section 22(4)(b) of the Act. Is Mr Barnes entitled to pension at either the Special or Intermediate Rate? Section 24(1)(b) and 24(1)(c) of the Act are the two key provisions in contention: (a)Section 24(1)(b). For this section to be satisfied, Mr Barnes must be totally and permanently incapacitated, meaning that his defence-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. This section is amplified by section 28 of the Act, which provides that the only factors a decision-maker shall have regard to in determining the kind of remunerative work Mr Barnes could reasonably undertake, are:(a)the vocational, trade and professional skills, qualifications and experience of the veteran; (b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and (c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b). (b)Section 24(1)(c). This section of the Act is often referred to as the ‘alone test.’ Under section 24(2) of the Act, Mr Barnes would not satisfy the alone test if he ceased to engage in remunerative work for reasons other than his service-caused incapacity, or was incapacitated or prevented from engaging in remunerative work for some other reason. Mr Barnes’ Work Capacity and Findings From the Medical Evidence I consider the contemporaneous medical evidence more influential, given that it reflects the views of specialists with a comprehensive case history to draw on. In relation to Mr Barnes’ capacity for work, I have considered the competing views in this regard:(a)Mr Barnes’ oral evidence was that providing he could sit/stand/stretch in his work place, he assesses that he could do ‘no more than 3 or 4 hours’ of work per day, which equates to approximately 15-20 hours per week.(b)Dr Prestage assesses that Mr Barnes ‘is capable of fulltime work in a clerical role that allows him to get up from time to time.’ (c)Dr Horsley considers that Mr Barnes is not able to work fulltime, but ‘probably has capacity to work between eight and 20 hours per week.’ (d)Dr Fotakis is of the opinion that due to his accepted disabilities Mr Barnes is unable to work more than eight hours per week.