Bell and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1065

Bell and Repatriation Commission (Veterans' entitlements) [2017] AATA 1065 (11 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/0998
Re:David Bell
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:11 July 2017
Place:Sydney

The Tribunal affirms the decision under review made by a delegate of the Repatriation Commission on 22 November 2013 that determined the rate of disability pension to be 80% of the general rate with effect from 28 February 2015, which was affirmed by the Veterans’ Review Board on 18 December 2015.
....................[sgd] ....................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
VETERAN’S AFFAIRS – assessment of rate of pension –- applicant in receipt of pension at 80% of the general rate – a person with the applicant’s skills and incapacity is able to work for more than eight hours a week – a person with the applicant’s skills and incapacity is able to work more than part-time hours – the applicant is not eligible for the pension at the special or intermediate rate – decision under review is affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 23, 24, 28
Administrative Appeals Tribunal Act 1975 (Cth) s 37
CASES
Smith v Repatriation Commission [2014] FCAFC 53
REASONS FOR DECISION
Mrs J C Kelly
11 July 2017
Introduction

Mr Bell, the applicant, is a veteran, who has had several periods of operational and eligible defence service under the Veterans’ Entitlements Act 1986 (the Act). He is receiving disability pension at 80% of the general rate, with effect from 28 February 2013. He is seeking either the intermediate rate (s 23 of the Act) or special rate (s 24 of the Act) of the disability pension.
The earliest possible date of effect is 28 February 2013. The assessment period commences on 30 May 2013 and ends with the decision of this Tribunal (s 19(9) of the Act). Provided that a pension was payable at the intermediate or special rate at some time during that period, it will be payable, and if both are applicable, according to “whichever is most recently applicable”.[1]
[1] Smith v Repatriation Commission [2014] FCAFC 53 per Buchanan J at [40].
The relevant standard of proof is reasonable satisfaction (s 120(4) of the Act).
It is accepted that Mr Bell satisfies the first three criteria under both s 23 and s 24 which are identical:
·He has made an application for an increase in pension;
·He had not turned 65 when the claim or application was made;
·His degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be at least 70%.
The following conditions have been accepted under the Act as related to Mr Bell’s operational and eligible defence:
·Osteoarthritis of the right hip
·Thoracic spondylosis
·Lumbar spondylosis
·Osteoarthritis affecting both knees
·Sensorineural hearing loss
·Tinnitus
Mr Bell had a total right hip replacement in 2014.
The following conditions that Mr Bell suffers have not been accepted as related to his operational and eligible…

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 1065
Decision Date: 11 July 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bell against a decision of the Repatriation Commission, affirmed by the Veterans’ Review Board, which determined his disability pension rate at 80% of the general rate. The core of the dispute revolved around whether Mr Bell was eligible for a pension at the special or intermediate rate, which are contingent on a veteran's incapacity to undertake remunerative work. The Administrative Appeals Tribunal was tasked with reviewing this determination.

The legal issues before the Tribunal were whether Mr Bell, given his vocational skills, qualifications, experience, and the degree to which his war-caused injuries or diseases reduced his capacity, was incapable of undertaking remunerative work. Specifically, the Tribunal had to consider if his incapacity prevented him from working more than eight hours a week or from undertaking part-time employment, as required for eligibility for the higher pension rates. The Tribunal was bound by section 28 of the Act, which stipulated the exclusive matters to be considered when assessing incapacity for work.

The Tribunal considered extensive evidence, including Mr Bell's detailed work history in the Royal Australian Navy and Air Force, his subsequent civilian employment as a truck driver and in fuel quality control, and his vocational training. It also took into account medical reports and oral evidence from occupational physicians. The Tribunal found that Mr Bell possessed significant transferable skills, including administrative, organisational, and leadership capabilities, alongside his heavy vehicle driving licences and maritime qualifications. Despite his admitted physical impairments, the Tribunal concluded, based on the evidence and the criteria in section 28, that a person with Mr Bell's skills and degree of incapacity could reasonably undertake remunerative work for more than eight hours a week and was not incapable of part-time employment. The Tribunal rejected the submission that his accepted conditions needed to be the "substantial reason" for his inability to work, as this was not the relevant test for determining eligibility under section 24(1)(b) of the Act.

Consequently, the Tribunal affirmed the decision under review, upholding the determination that Mr Bell's disability pension rate remained at 80% of the general rate.

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

Section 28 of the Act requires that in determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, the Tribunal shall have regard to the following matters only:(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).The evidence before the Tribunal The evidence before the Tribunal included the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), two written statements by Mr Bell dated 22 June 2016 and 26 October 2016, his oral evidence, reports and oral evidence from Doctors Rosenthal and Chase, occupational physicians, and clinical notes from the medical practice Mr Bell attended.Consideration of incapacity for work Mr Bell’s work history is not contentious. He served in the Royal Australian Navy from 10 October 1969 until 15 January 1977. He left with the rank of Leading Seaman Quartermaster Gunner. He dealt with small arms and ammunition and undertook seamanship duties, which included moving pontoons and barges and boarding parties. He had two specialisations, ships diver doing underwater maintenance, and sea cat aimer. He then had a break for about 18 months doing various jobs, but predominantly truck driving. Mr Bell joined the Royal Australian Air Force on 18 July 1978 and left on 21 July 1991 when he held the rank of sergeant. The Interim Certificate of Service states that he was a motor transport driver. Mr Bell told the Tribunal that he did regular interstate trips for a while, was an aircraft refueller in Darwin and Malaysia, and worked in a number of bases around Australia. When he worked at Laverton he did refuelling, general duties and driving, but rarely drove interstate during this time. He did licensing and trade testing, evaluating drivers for a particular level of licence to drive cars, and light to medium trucks. He gave the drivers verbal and written examinations and processed the paper work. When he worked at Kingswood he changed tyres on semi-trailers using tyre levers and mallets. When he left the Air Force, he joined Mobil as a tanker driver and then transferred to Tullamarine where he was refueller. He left in 1995 for a sea change to the New South Wales south coast. He got casual work on building sites doing labouring work but it was very competitive and so he did a welding course at TAFE. He joined Serco in 2000 working at HMAS Albatross where he was refuelling aircraft and responsible for maintaining fuel quality control. He described that work as administrative work and said that he was looking after receipts for fuel, holding of fuel, and the issue of aircraft fuel. Mr Bell left that job in 2004.

Decision

Reasons for decision

In coming to that conclusion, the Tribunal has taken into account the submission made on behalf of the applicant that the test is whether Mr Bell’s accepted conditions are the substantial reason he cannot work. That submission relied on s 24(2)(b) which qualifies s 24(1)(c). It is not relevant to determining whether an applicant satisfies s 24(1)(b) of the Act. The Tribunal does not accept that submission.Decision The Tribunal affirms the decision under review made by a delegate of the Repatriation Commission on 22 November 2013 that determined the rate of disability pension to be 80% of the general rate with effect from 28 February 2015, which was affirmed by the Veterans’ Review Board on 18 December 2015.

Ratio Decidendi

Legal Principle Established

The evidence before the Tribunal included the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), two written statements by Mr Bell dated 22 June 2016 and 26 October 2016, his oral evidence, reports and oral evidence from Doctors Rosenthal and Chase, occupational physicians, and clinical notes from the medical practice Mr Bell attended.Consideration of incapacity for work Mr Bell’s work history is not contentious. He served in the Royal Australian Navy from 10 October 1969 until 15 January 1977. He left with the rank of Leading Seaman Quartermaster Gunner. He dealt with small arms and ammunition and undertook seamanship duties, which included moving pontoons and barges and boarding parties. He had two specialisations, ships diver doing underwater maintenance, and sea cat aimer. He then had a break for about 18 months doing various jobs, but predominantly truck driving. Mr Bell joined the Royal Australian Air Force on 18 July 1978 and left on 21 July 1991 when he held the rank of sergeant. The Interim Certificate of Service states that he was a motor transport driver. Mr Bell told the Tribunal that he did regular interstate trips for a while, was an aircraft refueller in Darwin and Malaysia, and worked in a number of bases around Australia. When he worked at Laverton he did refuelling, general duties and driving, but rarely drove interstate during this time. He did licensing and trade testing, evaluating drivers for a particular level of licence to drive cars, and light to medium trucks. He gave the drivers verbal and written examinations and processed the paper work. When he worked at Kingswood he changed tyres on semi-trailers using tyre levers and mallets. When he left the Air Force, he joined Mobil as a tanker driver and then transferred to Tullamarine where he was refueller. He left in 1995 for a sea change to the New South Wales south coast. He got casual work on building sites doing labouring work but it was very competitive and so he did a welding course at TAFE. He joined Serco in 2000 working at HMAS Albatross where he was refuelling aircraft and responsible for maintaining fuel quality control. He described that work as administrative work and said that he was looking after receipts for fuel, holding of fuel, and the issue of aircraft fuel. Mr Bell left that job in 2004. He worked as a truck driver for a small local earth moving business for about six weeks. He described the truck as having a “twin tipper”. He then did some temporary work for a couple of months for his son who was a plumber which involved digging trenches and using a wheel barrow. Mr Bell told the Tribunal that he holds a heavy articulated truck driving licence and has various qualifications from Yachting Australia, from deck hand to coastal skipper. He agreed during cross-examination that he has some organisation, leadership and clerical skills. Mr Bell maintained during the hearing that his neck and shoulder conditions do not contribute to his incapacity for work, including driving a truck, and did not contribute to his ceasing work. At most, he conceded that they were a minor part of his incapacity to work. He claimed that his neck condition improved after he had his hip replacement operation and that he was also assisted by a Department of Veterans’ Affairs health program he had been doing. He denied that he was suffering from depression or that depression impacts on his capacity to work.