Bradd and Repatriation Commission - [2002] AATA 321

DECISION AND REASONS FOR DECISION [2002] AATA 321

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/534

GENERAL ADMINSTRATIVE DIVISION        )
           Re      WARREN HERBERT BRADD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way

Date3 May 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ..................(Sgnd)...................
  Mr I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension assessment - special rate of pension – whether incapacity war-caused – whether incapacities render applicant incapable of undertaking any remunerative work – whether incapacity alone is preventing continued work - whether applicant is genuinely seeking to engage in remunerative work or whether, but for his incapacity, he would be continuing so to seek to engage remunerative work

Veterans' Entitlement Act 1986

Hall v Repatriation Commission (1994) 33 ALD 453
Cavell v Repatriation Commission (1988) 9 AAR 534
Sheehy v Repatriation Commission (1996) 137 ALR 223
Repatriation Commission v Strickland (1990) 12 AAR 412

REASONS FOR DECISION

3 May 2002 Mr I R Way, Member

This is an application by Warren Herbert Bradd (the Applicant) for review of a decision of the Veterans' Review Board (VRB) dated 1 June 2000, which set aside the decision of the Respondent assessing the Applicant's disability pension at 80% of the General Rate and substituted its decision that pension be assessed at 90% of the General Rate, to operate from and including the 27 January 1999.
In arriving at this decision the VRB was satisfied that disability pension is not payable to the Applicant at the Special Rate.
At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), a written statement by the Applicant signed 26 February 2001(Exhibit A1) and a written report from Dr Scott Jenkins dated 24 May 2001 (Exhibit A2). The Applicant gave oral evidence and Dr Scott Jenkins gave evidence by telephone.
BACKGROUND
There was no dispute between the parties about the facts set out in the Applicant's Statement of Facts and Contentions. In view of this and on the evidence before it, The Tribunal finds as follows:
(a)      On 27 April 1999, the Applicant lodged a formal claim with the Repatriation Commission for acceptance of post traumatic stress disorder, alcohol abuse and hypertension as war-caused disabilities, as well as claiming an increase of pension.
(b)      On 26 October 1999, the Repatriation Commission accepted the Applicant's claims for post traumatic stress disorder, alcohol abuse and hypertension and assessed disability pension at 80% of the General Rate.
(c)       On 29 November 1999, the Applicant appealed the decision in respect of assessment of pension to the VRB.
(d)      On 1 June 2000, the VRB set aside the decision of the Repatriation Commission and assessed pension as being payable at 90% of the General Rate effective from 27 January 1999.
(e)      On 7 June 2000, the VRB advised the Applicant of this decision.
(f)       On 16 June 2000, the Applicant appealed to the AAT from these decisions.
(g)      The Applicant served…

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 Bradd and Repatriation Commission

Details

AGLC: Bradd and Repatriation Commission [2002] AATA 321
Case: [2002] AATA 321
Decision Date: 3 May 2002

CaseChat Overview and Summary

Bradd and the Repatriation Commission were the parties in this dispute, which concerned the assessment of a disability pension. The Administrative Appeals Tribunal was the court that heard the case. The central legal issues involved determining whether the applicant's incapacity was war-caused and whether this incapacity alone rendered him incapable of undertaking any remunerative work. Additionally, the court needed to ascertain if the incapacity was the sole factor preventing the applicant from continuing to undertake remunerative work and whether he was genuinely seeking employment or if his incapacity alone was preventing him from doing so.

The Tribunal considered the evidence presented, including the applicant's written statement and medical history. The applicant claimed that his excessive alcohol consumption and post-traumatic stress disorder, which began during his service, rendered him incapable of running a business and affected his ability to secure and maintain employment. The Tribunal examined the applicant's service record, which showed no adverse reports related to his alcohol consumption and that he had served effectively until his discharge after completing twenty years of service. The Tribunal noted the onset of the applicant's excessive alcohol consumption and post-traumatic stress symptoms following his service in Borneo and Vietnam, but it concluded that the applicant's decision to seek discharge was not solely due to his disabilities.

The Tribunal concluded that the applicant's incapacity met the criteria under section 24(1)(a) of the Veterans' Entitlement Act 1986 and that he was incapable of undertaking any remunerative work due to his incapacity. However, the Tribunal found that the applicant was not solely prevented from continuing to undertake remunerative work by his incapacity. The Tribunal relied on the principles established in previous cases such as Cavell v Repatriation Commission and Sheehy v Repatriation Commission, which emphasised making practical decisions based on common sense rather than philosophical distinctions. Ultimately, the Tribunal determined that the applicant's decision to leave the Army was not solely due to his disabilities and that his incapacity alone was not the sole reason preventing him from continuing to undertake remunerative work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This matter is to be determined as provided for by s 120 (4) of the Act and as such the Tribunal must decide the matter to its reasonable satisfaction (that is on the balance of probabilities).THE APPLICANT'S EVIDENCE In his written statement of 26 February 2001 (Exhibit A1) the Applicant states:"Towards the end of my service I was consuming large amounts of alcohol. I was drinking heavily, becoming aggressive and doing some very crazy things. I found myself to be drinking all the time. I received absolutely no counselling or guidance from the Army. Doctors had subsequently advised me that this behaviour indicates that I may have been suffering from post traumatic stress disorder at this time. As I didn't want to affect the younger soldiers I was working with I decided it was time to leave the army. Upon leaving the Army I registered with the Commonwealth Employment Services (CES). As I was unable to gain employment I proceeded to set up my own business manufacturing garden furniture. I only lasted in this business for approximately one year as I found it difficult to sell the furniture I was making. Most of this time I was only existing on my DFRDB payments. I was continually hungover after heavy drinking sessions often not being capable of working. Sometimes I was lucky to have worked two or three days a week. I suffered severe mood swings often becoming argumentative and aggressive to potential customers. I do believe this is what drove customers away to such a degree that it impacted upon this business.I originally pursued this line of work because I couldn't stand civilians and wanted a job where I didn't have to deal with the public. I believe my post traumatic stress disorder and alcoholic dependence rendered me incapable of running this business and was the main contributing factor to my business venture failing.After the business failed I went to various job interviews. At these interviews I lacked self-confidence. I was never at ease and found it difficult to get on very well with the interviewers, in particular if any mention was made about joining a Union or slighting the Army.I recall one particular incident when I was applying for a job with K-Mart. I had been asked to sign a form which would join me to the relevant Union. I refused to do this due to my deep dislike of Unions. When pressured to sign I snapped and the situation ended with me being escorted from the shop by a security guard.I was originally taking my army documents to interviews with me, However I have often received negative statement from interviewers as to my involvement in the Armed Forces especially with regards to my deployment in Vietnam. I reacted quite badly when this happened. I therefore ended up burning my army documents and did not tell potential employers about my previous involvement with the Armed Services. I was a Warrant Officer in the Army and proud of serving my country. I felt dirty and degraded when being interviewed. I lost all self-esteem.I was quite anxious before interviews. To calm my nerves I would often have one or two stiffs drinks to calm myself down before attending Interviewers would smell this on my breath. When comments were made about my having been drinking before attending an interview I would just leave and get drunk. I managed to gain work through a friend doing a cleaning job. I found this to be a very difficult situation to deal with. The boss was constantly niggling at me. One day he was having a go at me and said that I was just a useless Vietnam veteran. I could not deal appropriately with this situation so I just put down the mop and walked out on the job in tears.I volunteered for the SES recruiting ex-servicemen. During this time however I had a number of altercations with my boss due to my heavy drinking and again eventually got to the point where I could no longer deal with the situation and left. After this bad experience I do not feel that I could work in a volunteer situation again.I lived for many years in a shed at the rear of my parent's property and virtually became a recluse. I survived on my DFRDB of $200.00 a week and only left home to get alcohol, buy cigarettes and draw my DFRDB cheque. I was drunk all of the time. I have very little recollection of this period as I was in a constant alcoholic stupor. I withdrew from all social contact with what I thought of as the outside world and saw nobody. My family avoided me and I had driven all of my friend's away unless they wanted a free beer."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally it was submitted that Special Rate of pension was intended for relatively young veterans who cannot work and that the Tribunal should take into consideration the fact that the Applicant was now presenting himself for TPI after such a long absence from the workforce.CONSIDERATION It is common ground that the Applicant's degree of incapacity meets the test as provided for in s 24(1)(a) of the Act and the Tribunal so finds. There is no dispute between the parties that the Applicant's incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render him incapable of undertaking any remunerative work. In view of this and on the evidence before it the Tribunal finds that the Applicant at the relevant time satisfies s 24(1)(b) of the Act. Turning then to s 24(1)(c) of the Act, the first question to be addressed is whether the veteran is, by nature of his incapacity, alone, prevented from continuing to undertake remunerative work that he was undertaking. In considering this question the Tribunal is mindful of what his Honour Justice Burchett said in Cavell v Repatriation Commission (1988) 9 AAR 534 (Cavell), at 539 namely:" to distract the Tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide." Furthermore the Tribunal notes that in Sheehy v Repatriation Commission (1996) 137 ALR 223 (Sheehy) the Full Federal Court established that "undertake" and "undertaking" in s 24(1)(c) requires that the work be undertaken successfully or effectively. With respect to the Applicant's discharge from the Army, the Tribunal notes that this was at the Applicant's request and after he had rendered twenty years of service thereby making him eligible to receive a pension under the DFRDB scheme. He was not classified by the Army as medically unfit at any stage during his service (being classified FE throughout his service), nor was he the subject of any adverse report during his service with respect to his drinking habit. While it is noted on the Applicant's medical board report, four years prior to his discharge, that he should reduce his alcohol consumption he continued to serve effectively and gained promotion as an infantry instructor at the Officer Cadet School, the Jungle Warfare Centre and the Battle Wing at Tully, albeit on his evidence, with counselling from his senior non-commissioned Officers about his alcohol consumption. The Tribunal is mindful that the medical evidence and the Applicant's own evidence point to the onset of excessive alcohol consumption in concert with post traumatic stress symptoms following his services in Borneo in 1965 and subsequently in Vietnam. However, given the above history of his employment in the Army the Tribunal is of the view that the fact that the Applicant sought discharge after he had completed twenty years of service is not an insignificant reason as to why he did not continue to serve in the Army. As such the Tribunal is satisfied that it was not by reason of his accepted disabilities and incapacity, alone, that he was prevented from continuing to serve in the Army.