Bradley and Repatriation Commission
[2009] AATA 400
•3 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2335
VETERANS' APPEALS DIVISION ) Re MARGARET BRADLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date3 June 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable – Reviewable decision affirmed.
Veterans’ Affairs Legislation Amendment Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth), ss 19, 24, 119(1), 120(4), 120(6)
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
3 June 2009 Dr P McDermott, RFD, Senior Member introduction
1. Mr Brian Bradley (the veteran) lodged a claim for a pension before he died. The respondent assessed the rate of pension payable to the veteran prior to his death to be 100% of the general rate. That decision was affirmed by the Veterans’ Review Board. Mrs Margaret Bradley, the widow of the late veteran, seeks review of that decision by this Tribunal. I have to decide whether the veteran was entitled to be paid an earnings-related rate of pension prior to his death.
service
2. The veteran served in the Australian Army from 13 September 1965 until 12 September 1968. He rendered operational service in Vietnam from 11 June 1966 until 11 December 1966. He had a number of accepted disabilities arising from his operational service.
matters of proof
3. The applicant does not bear any onus of proof: see s 120(6) of the Veterans’ Entitlements Act 1986 (“the Act”). I must determine this application to my reasonable satisfaction: see s 120(4) of the Act. I am also required to make a decision in accordance with the substantial merits of the case: see s 119(1) of the Act.
assessment period
4. The Act provides that the entitlement of the veteran must be assessed during the assessment period: s 19(5C). This period is defined in s 19(9) of the Act as the period starting on the application day (which, here, is 2 June 2003) and ending when the claim or application is determined. In this case, the respondent has submitted that the assessment period should conclude on 14 December 2003, the date of the veteran’s death. I have accepted this submission by having regard to the purpose of the Veterans’ Affairs Legislation Amendment Act 1988. Its purpose is to ensure there is no need for a veteran to lodge a fresh application for increase in pension if that veteran becomes eligible to receive a higher rate of pension after the assessment date[1].
[1] See the Second Reading Speech for the Veterans’ Affairs Legislation Amendment Act 1988: Hansard, HR Debates, vol 163, 20 October 1988 at 2036.
criteria for the payment of pension at the special rate
5. I must determine whether the veteran satisfied the criteria for the payment of pension at the special rate under s 24 of the Act. It is not in issue that the veteran was under 65 years of age at the time of his claim and that he was in receipt of pension at a rate greater than 70% of the general rate: see ss 24(1)(aa), (aab) and (a)(i) of the Act.
6. The respondent concedes that the accepted psychiatric disabilities of the veteran made him incapable of undertaking remunerative work for periods aggregating more than eight hours per week: see s 24(1)(b) of the Act. I am satisfied that this concession was properly made, having regard to Dr Ian Curtis’ report of 31 August 2006.
7. What is in issue between the parties is whether the veteran was, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking: s 24 (1)(c) of the Act.
relevant remunerative work undertaken
8. I am required by the decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4 to consider the following question: “What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?” The evidence before me is that the veteran was the managing director of a company that had an ice-making plant. The veteran was also qualified as an air-conditioning and refrigeration mechanic.
9. Mrs Bradley gave comprehensive evidence as to the duties of the veteran. She discussed the administrative duties that he undertook, stating: “it was administration, leasing finance, bank managing, speaking to bank managers, obtaining credit, buying equipment”. Mrs Bradley also gave evidence that her husband was in charge of the ammonia-generated plant room. From the evidence of Mrs Bradley, which I accept, it is clear that the veteran had administrative as well as trade duties.
10. I find that the relevant remunerative work that the veteran was undertaking was as a company director and refrigeration mechanic. I do not accept the submission of the respondent that the kind of remunerative work was only that of a company director.
is war-caused injury or disease preventing the veteran from continuing to undertake the relevant remunerative work?
11. I am next required by the decision in Flentjarv Repatriation Commission (1997) 48 ALD 1 at 5 to consider whether the veteran, by reason of war-caused injury or war-caused disease, or both, was prevented from continuing to undertake the relevant remunerative work other than on a part-time basis or intermittently.
12. In Dr Curtis’ report, there is evidence that the veteran was unable to carry out the management of the ice-making plant because of the accepted conditions of the knee, posttraumatic stress disorder and alcohol abuse. The business was sold on 10 March 2003.
13. I rely on the report of Dr Curtis, psychiatrist, to answer “yes” to the second Flentjar question.
is the war-caused injury or disease the only factor or factors preventing the veteran from continuing to undertake the relevant remunerative work?
14. As the answer to the second Flentjar question is “yes”, I am next required by Flentjar v Repatriation Commission (1997) 48 ALD 1 at 5 to consider whether the war-caused injury or war-caused disease, or both, are the only factor or factors preventing the veteran from continuing to undertake the relevant remunerative work.
15. The veteran suffered from brain cancer during the assessment period. There is evidence before me that, prior to the assessment period, Mrs Bradley had arranged for the veteran to see his local medical officer on 1 May 2003. At that time, she was “concerned” about the ability of the veteran “to perform simple tasks correctly”: T4, fol 42. This is clear evidence from the applicant about the inability of the veteran prior to the assessment period.
16. On 12 May 2003, a brain biopsy on the veteran’s left frontal lobe area was done. The veteran then underwent surgery to remove a terminal tumour. That tumour of the brain has not been determined to have been related to the operational service of the veteran. I am not satisfied that it is related to any of the accepted conditions of the veteran. There was certainly no medical evidence placed before me which pointed to a connection between the tumour and any of the veteran’s accepted conditions[2].
[2] These accepted conditions are listed in the applicant’s Statement of Facts and Contentions dated 18 November 2008 (para 2).
17. The report of Dr Robert Campbell is relied upon by the applicant. It concerns the examination of the veteran on 7 July 2003. The applicant cites a passage from the report that the veteran is “90% back to normal” and that there is “little in the way of definitive neurological loss”. However, in that very same report, Dr Campbell reported on the “frontal lobe dysfunction and inappropriate behaviour” of the veteran. The veteran then had inappropriate urination and bladder control. Taking that report in context, I cannot find in it any basis for a finding that the veteran was then able to undertake remunerative work.
18. Indeed, previously on 13 June 2003, the veteran was seen by Dr Beryl Turner who is a consultant occupational physician. Dr Turner, in a comprehensive report, opined that the veteran was incapable of working. She stated that 90% of the reason why the veteran was unable to work was because of his recent brain surgery for the removal of a brain tumour. Dr Turner considered that the incapacity of the veteran was permanent. Throughout the report of Dr Turner, many references are made of the veteran being incoherent. Dr Turner stated that the veteran had “calculated his years of working as 125 years, and appeared to not notice the magnitude of this figure”. Dr Turner also reported that the veteran “was unable to give precise details as to his medical condition” and that he “requires constant supervision by his wife”. There was some suggestion by the applicant that Dr Turner “had it in for us as soon as I walked in that door”. However, the applicant did not suggest that Dr Turner had deliberately falsified her report. I regard it as significant that Dr Turner was not required for cross-examination. I also observe that her report was prepared soon after the commencement of the assessment period.
19. Later in the assessment period, on 9 September 2003, Dr Curtis reported that the veteran was “no longer able to provide a comprehensive personal narrative due to the obtunding of his cognitive processes by necessary surgery for terminal carcinoma of the cerebrum”.
20. In the circumstances, I provide a negative answer to the third Flentjar question. In view of my negative answer to the third Flentjar question, it is not necessary for me to answer the fourth Flentjar question.
conclusion
21. I am satisfied that the veteran does not meet the requirements for the payment of the special rate of pension.
decision
22. I affirm the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed:.................[Sgd].............................................................
Mátyás Kochárdy, Research AssociateDates of Hearing 4 December 2008; 5 February 2009
Final Submissions received 9 April 2009
Date of Decision 3 June 2009
Counsel for the Applicant Mr B Balzamo
Solicitor for the Applicant Compass Legal Solutions
Counsel for the Respondent Mr G Purcell
0