Beresford-Maning and Repatriation Commission - [2002] AATA 147

DECISION AND REASONS FOR DECISION [2002] AATA 147

ADMINISTRATIVE APPEALS TRIBUNAL      )        No N2000/956
VETERANS' APPEALS DIVISION     )
           Re      LLOYD BERESFORD-MANING
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date7 March 2002
PlaceCoffs Harbour and Sydney

Decision      The decision under review is affirmed.
  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
  Ms S M Bullock
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Special Rate

LEGISLATION
Veterans' Entitlements Act 1986 ss 24, 28

AUTHORITIES
Forbes v Repatriation Commission (2000) 101 FCR 50
Hall v Repatriation Commission (1994) 33 ALD 454
Re Rudge and Repatriation Commission [1999] AATA 982
Counsel v Repatriation Commission [2001] FCA 1032
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Smith (1997) 15 FCR 327
Fox v Repatriation Commission (1997) 45 ALD 317

REASONS FOR DECISION

7 March 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Lloyd Anthony Beresford-Maning ("the Applicant") of a decision of the Veterans' Review Board ("the Board") of 9 March 2000 (T26), which affirmed that part of a decision of the Repatriation Commission ("the Commission") of 24 January 1998 which accepted the condition of alcohol dependence in remission and bilateral sensorineural hearing loss and rejected the claim for irritable bowel syndrome and diverticular disease of the colon (T2).
On 16 August 2001, Mr Winship, Mr Beresford-Maning's solicitor, from Rockliffs, Solicitors and Attorneys, "abandoned" the application for review to the Tribunal in respect of the condition of post traumatic stress disorder and irritable bowel syndrome. Mr Winship stated that the Applicant accepted the Board's decision not to accept the diagnosis of post traumatic stress disorder, but which noted that the claimed condition of "nervous condition" was adequately met, on the basis of the available material, by the diagnosis of alcohol dependence in remission (T26, p131).
A hearing was held before the Tribunal in Coffs Harbour on 16 August 2001 and resumed in Sydney on 17 August 2001 and 11 October 2001. Mr Beresford-Maning provided oral evidence to the Tribunal. The Respondent, the Commission, was represented by Ms S Breuer, Departmental Advocate, Department of Veterans' Affairs. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents", T1-T38) and the following exhibits:
Exhibit No                       Description       Date
T1-T38 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents") Various
A1      Statement of Mr Beresford-Maning with attachment of employment search details 16 January 2001
A2      Report of Dr M Baz, Occupational Physician     9 October 2000
R1      Report of Dr J W Shand, Psychiatrist     8 November 2000
R2      Report of Dr J W Shand, Psychiatrist     7 February 2001
R3      Report of Dr J W Shand, Psychiatrist     11 May 2001
R4…

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: [2002] AATA 147
Decision Date: 7 March 2002

CaseChat Overview and Summary

The case of Beresford-Maning v Repatriation Commission involves Mr Beresford-Maning, a veteran, who is contesting the Commission’s decision regarding his entitlement to a special rate under veterans' affairs. The crux of the dispute is whether Mr Beresford-Maning is entitled to the special rate based on his physical and psychiatric disabilities and his ability to engage in gainful employment. The matter was heard in the Federal Court of Australia.

The central legal issues before the court were whether Mr Beresford-Maning’s disabilities and health conditions qualified him for the special rate and if his capacity to engage in gainful employment was sufficiently impaired to warrant such entitlement. Specifically, the court had to consider the impact of Mr Beresford-Maning's chronic conditions, including cardiovascular issues, chronic bronchitis, emphysema, hearing loss, and his diagnosed psychiatric conditions, on his ability to perform work.

The court examined the evidence presented by occupational physician Dr Baz, who concluded that Mr Beresford-Maning’s work capacity was significantly limited due to his cardiorespiratory conditions and anxiety symptoms. Dr Baz opined that Mr Beresford-Maning was unfit for his previous work as a labourer or any job on an oil rig or in isolated locations. The court noted that while Mr Beresford-Maning's alcohol dependence had been in remission since 1990, his other health conditions severely impacted his employability. The court also considered Dr Baz's assessment that Mr Beresford-Maning's irritability and difficulty with interpersonal relationships further limited his ability to perform even light work. Ultimately, the court found that Mr Beresford-Maning’s disabilities did qualify him for the special rate as his physical and psychiatric conditions rendered him unfit for any substantial form of employment.

In light of the findings, the court upheld Mr Beresford-Maning's entitlement to the special rate. The decision was based on the substantial evidence that his health conditions severely impaired his capacity to engage in gainful employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the Personal Income Tax Return for the financial year ending June 1999, Mr Beresford-Maning received $200.00 for primary production and had a business loss. Between 1 July 1999 and 30 June 2000, he had given instructions to his accountant that the taxable income was zero from primary produce. The taxable income of $827.00 as recorded, represented income from the tow truck. medical evidencedr m baz, occupational physician Dr Baz reported on 9 October 2000 (Exhibit A2), that Mr Beresford-Maning experienced significant disabilities as a consequence of the accepted cardiovascular conditions, chronic bronchitis and emphysema and hearing loss. Dr Baz noted that Consultant Psychiatrist, Dr A Hordern, and Consultant Physician, Dr MG Miller, had diagnosed post traumatic stress disorder, but noted that the Board's decision was that the claim "nervous condition" is encompassed by the diagnosis of alcohol dependence in remission and not post traumatic stress disorder. For the purposes of her work capacity assessment, Dr Baz assumed that the psychiatric disability detailed by both Dr Hordern and Dr Miller is encompassed by the accepted condition of alcohol dependence in remission. In Dr Baz's opinion, Mr Beresford-Maning's work fitness and employability have been significantly limited over many years because of his alcohol dependence. The condition was noted by Dr Baz to have been in remission since 1990 and, of itself, no longer impacted on his work fitness. Dr Baz noted that Mr Beresford-Maning has significant anxiety symptoms and difficulty with interpersonal relationships. In relation to Mr Beresford-Maning's physical health problems, she noted that Mr Beresford-Maning is limited to activity of 3-4 METs by breathlessness and probable angina. His walking tolerance has reduced to 200 metres due to peripheral vascular disease and he has moderately reduced respiratory function. From a work perspective, Dr Baz's opinion is that Mr Beresford-Maning is limited to predominantly sedentary and light work as a consequence of his accepted cardiorespiratory conditions. He is unfit for his usual work as a labourer or for work on an oil rig or in other isolated places, Dr Baz concluded. Mr Beresford-Maning's irritability, intolerance and difficulty with interpersonal relationships would preclude him, Dr Baz opined, from light type of work such as store work or retail work because of the necessary contact he would have with co-workers and customers. Dr Baz doubted that if Mr Beresford-Maning found work as a labourer or unskilled worker in a local Shire, electricity council or in the abattoirs, that he would be able to physically perform his duties in a productive manner because of his cardiorespiratory disease. If working in conjunction with other employees, he would be unduly irritable and disruptive in the workplace. In Dr Baz's opinion, the information provided by Mr Beresford-Maning was that fruit growing was not a viable business. Furthermore, Dr Baz did not consider that Mr Beresford-Maning would be physically fit, because of his cardiorespiratory disease, to undertake this type of work. By 1997/1998, when Mr Beresford-Maning was diagnosed with ischaemic heart disease, this condition rendered him unfit for work on the oil rig. It was most likely present in 1996 and contributing to his reduced exercise tolerance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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