Briggs and Repatriation Commission

[2002] AATA 680

DECISION AND REASONS FOR DECISION [2002] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/131

VETERANS' APPEALS  DIVISION       )          
           Re      KENNETH WILLIAM BRIGGS    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Associate Professor B W Davis AM., (Part-time Member)      

Date12 August 2002

PlaceHobart

Decision      The decision under review is affirmed. 
  ..............................................
  Part-Time Member
CATCHWORDS
Veteran's Appeals - disability pension - impairment - lifestyle - remunerative work - general rate - special rate - Veteran's Review Board - GARP (Guide to Assessment of Rates of Veterans' Pensions).
Legislation

Veterans' Entitlements Act 1986 – ss23 and 24

REASONS FOR DECISION

12 August 2002      Associate Professor B W Davis AM., (Part-time Member)                  
The Application

1. The applicant, Kenneth William Briggs, seeks review of a decision made by a delegate of the Repatriation Commission on 8 July 1999, subsequently affirmed by a decision of the Veterans' Review Board (VRB) on 7 August 2001, whereby the applicant's rate of pension was increased to 90 per cent of the General Rate.
   Standard of Proof

2. The appropriate standard of proof is that set out in s120(4) of the Veterans' Entitlements Act 1986  ("the Act") i.e. the "reasonable satisfaction" standard.
   Background

3. Mr Briggs' principal employment was as a truck driver for TNT, being engaged by that firm from 1985 to 1992 until ceasing work on 29 May 1992 at his own request for health reasons.    He claims to have been suffering from PTSD and a back condition, being very edgy to the point where it was affecting his work and he was frightened he might lose control and assault somebody.   He was irritable and tense, wanting to be away from people and on his own.

4. In an undated statement received the by AAT on 15 May 2002, he claims that after ceasing employment he made enquiries about other prospects, but found that no position was available because of his back problem.   Two friends in the transport industry were not able to provide employment.
   Facts and Contentions

5. Counsel for the applicant noted that Mr Briggs had the following accepted disabilities:

• Low back strain

• Delayed post-traumatic stress disorder

• Bilateral sensori-neural hearing loss tinnitus

• Tinea

• Gastro-oesophageal reflux disease

Counsel also claimed a number of individual impairment ratings, which if accepted would convert to an overall rating of 58 rounded to 60.   Taken with a lifestyle rating of 4, this would convert via GARP tables to a 100 per cent rating i.e. Mr Briggs would qualify for a pension at 100 per cent of the General rate.

1. The applicant also contends that he is eligible for pension at the Special rate pursuant to s24 of the Act, not yet having turned 65 years of age, having a degree of incapacity of at least 70 per cent and unable to undertake remunerative work for periods aggregating more than 8 hours per week. It is also claimed that Mr Briggs has been genuinely seeking to obtain remunerative work, but has been unable to do so.

2. Counsel for the respondent submits that the correct assessment of the applicant's General rate entitlement is 90 per cent and does not agree he is incapable of working 8 hours per week or has been actively seeking employment.   The respondent notes that various contentions concerning impairment ratings are not supported by medical evidence or other material.
   Evidence

3. At the Tribunal hearing conducted in Hobart on 19 July 2002, the applicant was represented by Mr R M Webster and the respondent by Mr M Castle.

4. Mr Briggs was sworn and gave evidence about his employment situation and disabilities, stressing the pain he felt in back and legs and his concern that increasing friction with others during his period as a truck driver and deliverer would lead to violence.   He voluntarily left employment and has not worked since, believing he could not find anything suitable.   He had given up hobbies, had few social contacts and was on substantial medication of several kinds of painkillers, as well as treatment of his PTSD.   He had undergone counselling for several years, commencing in 1992.

5. In response to questioning by counsel for the respondent, Mr Briggs admitted that he had not gone to the Department of Employment or Social Security for assistance in seeking employment, he had merely enquired amongst friends in the transport industry and in any case believed his back injury made truck driving non-feasible, given that shifting loads was involved.    His work quest had ended in 1993.   He had not really contemplated other forms of employment, given that truck driving was all he knew.
   Analysis

6. In the initial decision of 8 July 1999, the delegate of the Repatriation Commission drew upon a Combined Impairment Report prepared by Dr H Brigden of the Department of Veterans' Affairs, giving a total impairment rating of 50 points.   When combined with a lifestyle rating of 4 points, this led to a disability pension of 90 percent of the General Rate.    The VRB concurred with this assessment but noted a report by Dr Binns, orthopaedic surgeon, dated 29 October 1999 in which the doctor expressed a view that surgery was unlikely to aid Mr Briggs and that "… the chance of him ever getting back to any form of gainful employment is virtually nil".   Joan Montgomery, clinical psychologist agreed that his accepted disabilities of PTSD and back condition made it unlikely he would work again.

7. As against this view it is clear the applicant gave up employment of his volition and not on the advice of any doctor.   His subsequent attempts to seek alternative employment were limited in time and field and did not even include light duties.   He also failed to use government services available to assist employment search.   Overall neither the VRB or the Tribunal are persuaded that he has actively sought to engage in remunerative work.

8. Counsel for the applicant argues that suggested impairment ratings for the accepted disabilities would now lead to an overall impairment rating of 58 rounded to 60.   No medical evidence was submitted to support such a contention, hence it merely remains speculative.   There is a distinct difference between the Repatriation Commission and VRB assessments of 50 points and the 70 points required before consideration of the Intermediate rate or Special rate would be triggered.   There is no firm evidence before the Tribunal to suggest that the applicant has an impairment rating of 70 points, thus this claim fails.

9. While the Tribunal has some sympathy for Mr Briggs predicament, having weighed all the evidence available to it, the Tribunal is reasonably satisfied that a pension at 90 percent of the General rate is appropriate, with effect from 21 May 1999.

10. The decision under review is affirmed.

    I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM., (Part-time Member)

    Signed:         .....................................................................................
      Administrative Assistant

    Date/s of Hearing  19 July 2002
    Date of Decision  12 August 2002
    Counsel for the Applicant        Mr R M Webster
    Solicitor for the Applicant         R M Webster
    Counsel for the Respondent    Mr M Castle
    Solicitor for the Respondent    Department of Veterans' Affairs