Brownlie and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2292

Brownlie and Repatriation Commission (Veterans' entitlements) [2017] AATA 2292 (17 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4126
Re:Alexander Brownlie
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:17 November 2017
Place:Brisbane

The decision under review is affirmed.
..............................[Sgd]..........................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – whether veteran is entitled to payment of disability pension at the Special Rate – where veteran’s degree of incapacity from war-caused injury or war-caused disease has been accepted to be 70% or more – alone test – whether veteran’s incapacity is of such a nature as, of itself alone, renders the veteran incapable of undertaking remunerative work – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 14, 19, 21, 22, 23, 24, 25, 27, 28, 30, 120
CASES
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Smith v Repatriation Commission (2014) 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221
Watkins v Repatriation Commission [2014] FCA 787
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
17 November 2017
INTRODUCTION

The key issue before the Tribunal is whether Mr Alexander Brownlie (the veteran) is entitled to payment of his disability pension at the Special Rate, as opposed to the General Rate, pursuant to the Veterans’ Entitlements Act 1986 (the Act).
The veteran was born in 1959 and, at the time of the hearing, was 57 years of age. After leaving High School at Grade 10 level, the veteran worked for Australia Post as a postal worker, in a saw mill and then in an aluminium fabrication plant – Exhibit 1 T73 p. 285.
The veteran served in the Royal Australian Army from 26 March 1991 until his medical discharge on 18 December 1998.
The Repatriation Commission (the Respondent) concedes that the veteran rendered eligible service for the purposes of the Act during the period 26 March 1991 to 6 April 1994 – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) p. 1 para 2.
The Respondent has accepted the following conditions as related to the veteran’s service under the Act – Exhibit 1 T2 p. 9 para 8, RSFIC pp. 1- 2 para 3:
·Lumbar spondylosis with disc lesion;
·Osteoarthritis of the right knee;
·Osteoarthritis of the left knee; and
·Bilateral pterygium.
The veteran served in the Army as a heavy vehicle operator and an air dispatch operator. His Army service ended because his medical conditions prevented him from fulfilling his service requirements. Since leaving the Army the veteran has been unemployed – Exhibit 1 T2 p. 9 para 13.
In December 1997, the veteran applied for the disability pension under the Act. At the time the claim was…

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.

Keep reading for free

Create a free CaseChat account to read Brownlie and Repatriation Commission (Veterans' entitlements... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 2292
Decision Date: 17 November 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Brownlie against a decision of the Repatriation Commission (the Respondent) regarding his entitlement to a disability pension at the Special Rate. The core of the dispute revolved around whether Mr Brownlie's degree of incapacity from war-caused injury or disease was such that it, of itself, rendered him incapable of undertaking remunerative work. The decision was made by Deputy President Sosso P.

The legal issues before the court were whether the Tribunal had correctly applied section 24(1)(c) of the *Veterans' Entitlements Act 1986* (Cth) in determining Mr Brownlie's eligibility for the Special Rate pension. This required the Tribunal to be satisfied that Mr Brownlie's incapacity, arising from war-caused injury or disease, was the sole factor preventing him from undertaking remunerative work. The Tribunal also had to consider all relevant matters to its reasonable satisfaction, pursuant to section 120(4) of the Act.

The Tribunal's reasoning focused on the evidence presented regarding Mr Brownlie's various medical conditions, including rotor cuff syndrome, coronary artery spasms, and potential depression. While acknowledging these conditions contributed to his incapacity, the Tribunal was not satisfied that they were the *sole* factors preventing him from undertaking remunerative work. The Tribunal considered Mr Brownlie's age (56) and his extended absence from the workforce (17 years) as relevant factors impacting his employability, alongside his medical conditions. The Tribunal applied the methodology outlined in *Flentjar v Repatriation Commission* (1997) 26 AAR 93, which requires a sequential assessment of whether the veteran is prevented from continuing their previous work, whether the war-caused conditions are the sole reason for this prevention, and if so, whether this results in a loss of earnings.

On the basis of the evidence and the balance of probabilities, the Tribunal found that Mr Brownlie was not entitled to payment of his disability pension at the Special Rate. Consequently, the decision under review was affirmed.

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

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal therefore finds, on the basis of the evidence presented, and on the balance of probabilities, that the veteran is not entitled to payment of his disability pension at the Special Rate.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Respondent submits, and the Tribunal agrees, that in reaching its decision, the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant tos 120(4) of the Act – RSFIC p. 17 para 4.CONSIDERATIONIntroduction “ The Veterans’ Review Board was not satisfied that the veteran met the requirements of s24(1)(c). In reaching this conclusion the Board provided the following reasons – Exhibit 1 T2 pp. 10 – 11:·A medical impairment assessment conducted by Dr Carmel Hickey in April 2007 indicates that Mr Brownlie’s rotor cuff syndrome of the left shoulder contributes to his incapacity for work…While Mr Brownlie informed the Board that his shoulder condition is ‘getting better’ and is ‘pretty good’, the Board noted Dr Hickey’s assessment that the shoulder condition is permanent and has a ‘severe or disabling effect on many functions’. The Board is not satisfied that Mr Brownlie’s rotor cuff syndrome of the left shoulder is not a contributing factor to his incapacity.·Mr Brownlie has a history of coronary artery spasms… Mr Brownlie informed the Board that his last attack was 12-18 months ago (he stated that prior to that attack he was suffering 3-4 attacks a year) and that he has been admitted to hospital following attacks on at least six occasions. Mr Brownlie played down the significance of his condition and stated he controls it through medication and stress management strategies. The Board notes Dr Arnold-Nott’s assessment that Mr Brownlie’s condition has ‘minimal impact’ but it requires adoption of ‘stress management strategies’. That suggests, that the condition would affect the kind of work, and possibly hours of work, he could undertake.·Mr Brownlie stated that his treating general practitioner has concerns that Mr Brownlie may be suffering some depression due to his conditions, and has prescribed medication and suggested that Mr Brownlie seek medical advice on management strategies. The Board notes Dr Arnold-Nott’s assessment that the psychological impact of Mr Brownlie’s pain has a ‘moderately significant impact’ on his employability…·Mr Brownlie’s employability. He is 56 years old and has been out of the workforce for 17 years.” Central to the disposition of this matter is the correct application of s 24(1)(c). It is helpful in this context to refer to the methodology outlined by Branson J in Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96:“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”