Barry Tanzer and Repatriation Commission - [2012] AATA 420

[2012] AATA 420

Division VETERANS' APPEALS DIVISION

File Number

2011/1779

Re

Barry Tanzer

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Deputy President P E Hack SC

Date 6 July 2012

Place Brisbane (heard in Townsville)
The decision under review is affirmed.
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Deputy President P E Hack SC
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlement – application for pension at special rate – post traumatic stress disorder - condition attributable to service – unable to undertake remunerative work – accepted condition alone did not prevent continuation of remunerative work - decision affirmed.
Legislation
Veterans’ Entitlement Act 1986 (Cth) s 24
Cases
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
Deputy President P E Hack SC
6 July 2012
Introduction

The applicant, Mr Barry Tanzer, has been diagnosed with post-traumatic stress disorder. The respondent, the Repatriation Commission, accepts that that condition is attributable to Mr Tanzer's service in the Royal Australian Air Force. In these proceedings, Mr Tanzer seeks a review of the decision by the Commission that Mr Tanzer is not entitled to be paid a pension at the "special rate", that is the rate prescribed in section 24 of the Veterans’ Entitlement Act 1986 (Cth) (the VEA).
To qualify for a pension at the special rate an applicant must satisfy each of the paragraphs in s 24 of the VEA. Here, the Commission accepts that Mr Tanzer satisfies each of those paragraphs save and except paragraph (c). The Commission accepts that Mr Tanzer has a war-caused disease, namely post-traumatic stress disorder, and that that disease has rendered him totally and permanently incapacitated, that is his incapacity from that condition is of such a nature as to render him in capable of undertaking remunerative work for periods aggregating more than eight hours per week. Paragraph (c) is in these terms,
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;
Background
I do not understand what follows to be in dispute. Mr Tanzer was born in September 1944. He served in the Royal Australian Air Force between 1961 and 1967, performing essentially clerical roles. Following his discharge he commenced employment with the Department of Primary Industries as a stock inspector. He remained employed in that Department for some 32 years. He rose through the ranks in his employment and was the acting manager of his section in Rockhampton in 1995 and then, in 1998, was made the regional manager at Longreach. Additionally, he undertook undergraduate and subsequently postgraduate studies and obtained a Master of Business Administration in 1996. As he was promoted, he found his employment less satisfying because he was involved in more and more administration.
Mr Tanzer also found…

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.

Continue reading Barry Tanzer and Repatriation Commission

Details

AGLC: Barry Tanzer and Repatriation Commission [2012] AATA 420
Case: [2012] AATA 420
Decision Date: 6 July 2012

CaseChat Overview and Summary

The case of Barry Tanzer and the Repatriation Commission involves a dispute over the eligibility of Mr. Tanzer for a pension at the special rate under the provisions of the Veterans' Entitlements Act. Mr. Tanzer, a former Royal Australian Air Force member, claims that his post-traumatic stress disorder (PTSD) is attributable to his service and has rendered him incapable of undertaking remunerative work. The Repatriation Commission accepted that Mr. Tanzer had a war-caused disease and was incapacitated but denied his eligibility for the special rate pension based on the specific criteria in section 24 of the Act.

The central legal issue before the court was whether Mr. Tanzer's incapacity due to his PTSD was the sole reason preventing him from continuing to undertake remunerative work, as required by section 24(1)(c) of the Act. The court had to determine whether Mr. Tanzer's condition alone, without considering other factors, prevented him from continuing his work. This involved a detailed analysis of the medical evidence and the nature of Mr. Tanzer's employment history and circumstances.

The court examined the medical evidence provided by Dr. Michael Likely, a consultant psychiatrist, who diagnosed Mr. Tanzer with chronic and severe major depressive disorder complicated by alcohol abuse. Despite the diagnosis of PTSD, Dr. Likely consistently maintained that Mr. Tanzer's primary issue was major depressive disorder. The court found that while Mr. Tanzer's condition did prevent him from continuing remunerative work, it was not the sole factor. Other elements, including dissatisfaction with his employment and a skin disorder, also contributed to his inability to work. Therefore, the court upheld the Commission's decision that Mr. Tanzer did not meet the criteria for the special rate pension.

As a result of this reasoning, the court affirmed the decision of the Repatriation Commission and the Veterans Review Board, denying Mr. Tanzer's claim for a pension at the special rate. The court concluded that Mr. Tanzer's PTSD was not the sole reason preventing him from continuing remunerative work, and thus he did not qualify for the special rate pension under the Act.

Orders

Orders of the court

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Background

Background to the litigation

To qualify for a pension at the special rate an applicant must satisfy each of the paragraphs in s 24 of the VEA. Here, the Commission accepts that Mr Tanzer satisfies each of those paragraphs save and except paragraph (c). The Commission accepts that Mr Tanzer has a war-caused disease, namely post-traumatic stress disorder, and that that disease has rendered him totally and permanently incapacitated, that is his incapacity from that condition is of such a nature as to render him in capable of undertaking remunerative work for periods aggregating more than eight hours per week. Paragraph (c) is in these terms,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;Background I do not understand what follows to be in dispute. Mr Tanzer was born in September 1944. He served in the Royal Australian Air Force between 1961 and 1967, performing essentially clerical roles. Following his discharge he commenced employment with the Department of Primary Industries as a stock inspector. He remained employed in that Department for some 32 years. He rose through the ranks in his employment and was the acting manager of his section in Rockhampton in 1995 and then, in 1998, was made the regional manager at Longreach. Additionally, he undertook undergraduate and subsequently postgraduate studies and obtained a Master of Business Administration in 1996. As he was promoted, he found his employment less satisfying because he was involved in more and more administration. Mr Tanzer also found that he was afflicted by a skin disorder which he attributes to post-traumatic stress disorder. I should say immediately that there is no evidence, beyond Mr Tanzer's opinion, to support that proposition. He found that his skin became inflamed when he was working inland but that it subsided when he was working in coastal areas. He applied for a transfer to a coastal position but was not able to obtain one. In mid-2002 Mr Tanzer's employment with the Department of Primary Industries ceased. In a document prepared by Mr Tanzer in July 2004 he described the reason for having ceased work with the Department as "medical reasons – recurring rash on arms and shoulders – suspect due to stress". Thereafter Mr Tanzer was briefly employed in the human resources field at an educational institution in September 2003 but left that employment when he found that he was unable to cope. Shortly after leaving that employment he was employed on a short-term contract for a mining company for a period of six weeks ending in late 2003. Mr Tanzer has not worked since that time. In early 2004 Mr Tanzer was referred by his general practitioner to Dr Michael Likely, a consultant psychiatrist. He has been treated by Dr Likely ever since. Following an initial consultation in February 2004 Dr Likely diagnosed Mr Tanzer as suffering from chronic and severe major depressive disorder complicated by alcohol abuse. It is a feature of this case that that remained the diagnosis of Dr Likely until at least May 2008.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Tanzer first claimed for post-traumatic stress disorder in 2008. The Commission refused that claim in June 2009 however the Commission's decision was set aside by the Veterans’ Review Board on 7 December 2009 and a decision substituted that post-traumatic stress disorder was war-caused, with effect from 20 November 2008. Subsequently, in the decision made on 29 March 2010, the commission determined that Mr Tanzer was entitled to a disability pension at 70% of the General Rate, but did not satisfy the qualifications for pension at the Special Rate. That decision was affirmed by the Veterans Review Board on 23 February 2011. It is that part of the decision that decided that Mr Tanzer did not qualify for special rate pension which is the subject matter of these proceedings.Consideration The present controversy falls to be determined by reference to what are known as the Flentjar[2] questions. In that case the Full Court held that the questions that arise under section 24 (1) (c) of the VEA are, (1)What was the relevant "remunerative work of the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?(2)Is the veteran, by reason of his service related incapacity, prevented from continuing to undertake that work?(3)If the answer to question two is yes, is that incapacity the only factor that is preventing the veteran from continuing to undertake that work?(4)If the answers to questions two and three are, in each case, yes, is the veteran 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?[2] See Flentjar v Repatriation Commission (1997) 48 ALD 1, at 4-5. The parties are agreed as to the range of remunerative work that needs to be considered. It is as a stock inspector, a manager, a human resources consultant, and a lecturer/ tutor/ marker or demonstrator in an academic field. And Mr Stoner, who appeared for the Commission, agreed that the second question should be answered favourably to Mr Tanzer. The contest then revolves around the answers to the third and fourth questions. To consider whether Mr Tanzer's post-traumatic stress disorder is the only factor that is preventing him from continuing to undertake the remunerative work that has been identified it is necessary to go back and consider the medical evidence over the years. As I have said, Dr Likely first saw Mr Tanzer in February 2004. His report of 25 February 2004 concludes as follows, Mr Tanzer has been suffering from chronic and severe major depressive disorder complicated by alcohol abuse. His major depressive disorder appears to have arisen in the aftermath of his service in Thailand and has plagued him ever since.He reached a similar view in his report dated 7 June 2004. In February 2006 Dr Likely was still of the view that Mr Tanzer suffered from major depressive disorder. In his report of 6 February 2006 he expressed the "unequivocal opinion that by virtue of his major depressive disorder alone, Mr Tanzer should be recognised as being totally and permanently incapacitated from undertaking any type of remunerative employment." Dr Likely prepared a lengthy report of 4 October 2006, directed to the solicitors who then acted for Mr Tanzer in the earlier proceedings in the Tribunal. In that report he expressed the opinion that Mr Tanzer suffered from major depressive disorder and alcohol abuse (in remission). His report made explicit reference to "flashbacks" that Mr Tanzer had reported suffering from but he concluded that these did not constitute this associative flashbacks as such and that no further diagnostic conclusions could be drawn from his experience as a flashback; rather, he concluded, they represented a feature of his ongoing depressive illness.

Division	VETERANS' APPEALS DIVISION
File Number	2011/1779
Re	Barry Tanzer
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President P E Hack SC
Date	6 July 2012
Place	Brisbane (heard in Townsville)