Challenger and Repatriation Commission - [2000] AATA 322

DECISION AND REASONS FOR DECISION [2000] AATA 322

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/499

VETERANS' APPEALS DIVISION          )
           Re      TERRENCE JOSEPH CHALLENGER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Brigadier I R W Brumfield CBE, DSO, RL Dr J M Lawrence AM

Date27 April 2000
PlaceBrisbane

Decision The decision under review is affirmed.

Decision No. 322/2000 (Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS: – Disability pension – War-caused disease – PTSD and permanent incapacity – Remunerative work

Veterans' Entitlements Act 1986 – s20, s24, s28, s120(1)

Banovich v Repatriation Commission (1986) 69 ALR 395
Delkou v Repatriation Commission (1986)69 ALR 406
Lucas v Repatriation Commission (1986) 69 ALR 415
Re Davis and Repatriation Commission (1996) 44 ALD 80
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

Mr K L Beddoe (Senior Member) Brigadier I R W Brumfield CBE, DSO, RL Dr J M Lawrence AM

By a decision dated 4 August 1998 the Veteran's Review Board decided that post traumatic stress disorder ("PTSD") should be accepted as a war-caused disability for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
The respondent assessed the disability pension payable at 80% of the general rate with effect from 27 December 1995. The Veterans' Review Board subsequently varied the decision to 90% of the general rate. The applicant seeks review of the Board's decision on the basis that he is entitled to pension at the special rate pursuant to section 24 of the Act.
So far as is relevant section 24 of the Act reads as follows:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering…

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 Challenger and Repatriation Commission

Details

AGLC: Challenger and Repatriation Commission [2000] AATA 322
Case: [2000] AATA 322
Decision Date: 27 April 2000

CaseChat Overview and Summary

This case involved a dispute between a veteran and the Repatriation Commission regarding eligibility for a disability pension due to war-caused disease. The veteran, who served in the military and later worked in the public service, claimed he was unable to undertake remunerative work for more than eight hours per week due to post-traumatic stress disorder (PTSD) and other conditions. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the veteran met the statutory criteria for a disability pension under the Veterans' Entitlements Act 1986.

The primary legal issues before the Tribunal were whether the veteran was incapable of undertaking remunerative work for periods aggregating more than eight hours per week, and whether his incapacity was due to his war-caused disease. The Tribunal had to consider the statutory criteria set out in sections 28 and 24 of the Act, as well as relevant case law. In particular, the Tribunal examined whether the veteran's PTSD, as opposed to other factors such as voluntary retirement, rendered him incapable of engaging in remunerative work.

The Tribunal found that the veteran's vocational skills were limited and suited for clerical/administrative work, but his PTSD made it impossible for him to work in such an environment. The Tribunal was satisfied that the veteran could not relate to others in a tolerable way, making it futile for him to seek alternative employment. However, the Tribunal also considered that the veteran's voluntary retirement from the public service was not related to his PTSD, and thus did not constitute a cessation of remunerative work due to the disease. The Tribunal concluded that while the veteran's PTSD was a significant factor, it was not the sole reason for his incapacity to work.

The Tribunal ultimately determined that the veteran was eligible for a disability pension. The Tribunal found that the veteran was incapable of undertaking remunerative work for periods aggregating more than eight hours per week due to his war-caused disease, and that his incapacity was not solely due to voluntary retirement. Therefore, the Tribunal upheld the veteran's claim for a disability pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the hearing the applicant was represented by Mr Ben-Avi and the respondent was represented by Mr Stoner. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and his partner. No oral evidence was called for the respondent.The Evidence We make the following findings of fact. The applicant was born on 28 December 1939. He commenced employment with the Queensland Government in 1955 and ceased that employment in December 1994 upon attaining the age of 55 years and thereby being eligible to elect to retire. He said in evidence that he resigned his employment but we are satisfied that he elected to retire. In 1965 the applicant joined the Citizen Military Force while still continuing his employment with the Queensland Government and was attached to "Small Ships." In 1969 he volunteered for full time duty with the Australian Regular Army with a view to service in Vietnam. The Queensland Government approved leave for this purpose. The applicant was attached to 32 Small Ships Squadron, Royal Australian Engineers and he served on AV John Monash between 10 October 1969 and 20 December 1969 including time in Vietnamese waters. He was the only CMF member in the 40 persons crew of the John Monash and found the situation beyond his experience and difficult to adjust to. He said he was not compatible with the regular soldiers and tended to withdraw from the situation. Upon completion of his tour of duty the applicant returned to his employment with the Queensland Government, remaining in that employment until he elected to retire in December 1994 at 55 years of age. The applicant says that he continued on from where he had left off upon his return from South Vietnam but now says with the benefit of hindsight, that his attitudes had been changed by the experience in South Vietnam. Several years after his return from Vietnam his wife divorced him on the basis that he was "something different" but the applicant thought at the same time that his wife was at fault. Although he had been intending to remain working in the public service until he reached 65 years as the years passed he found life at work increasingly difficult and stressful. His employer accused him of having an "attitude" problem. This manifested in the applicant having difficulties in his relationship with senior staff at his place of employment. Upon retirement in December 1994 the applicant moved from Brisbane to the Tweed River area so as to avoid having neighbours and to be able to participate in surfing although he did not seek to associate with other surfers. Following retirement from the public service the applicant sought and obtained employment at a fish shop and subsequently on a demolition site. He could not cope with either job and left after a few days. At the demolition job he left after getting into an argument with neighbours over his method of demolition with a chain saw. He sought other employment but was unsuccessful. He says he cannot cope with confined spaces, objected to the Tribunal's hearing room and does not frequent clubs and bars because of the dislike of confined and populated spaces. His only regular commitment is meetings of his motor cycle club (Vietnam Veterans' Motorcycle Club). He relies on his partner to do shopping but does go to a local convenience store every couple of days.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Dr Danesi diagnosed "anxiety disorder not otherwise specified." He said the main problem seemed secondary to personality traits – "his aggressiveness, irritability and arrogance."Consideration We do not disturb the decision that the applicant's PTSD is a war-caused disease. We have to decide firstly whether the applicant is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In so doing we must take into account the criteria set out in section 28 of the Act. We are satisfied that the applicant's vocational skills are of narrow compass and are the skills he acquired from 39 years service in the public service. His skills are essentially of a clerical/administrative character and that is the type of work he might reasonably undertake except for the war-caused PTSD. In that regard we do not see the chronic back pain as being an impediment to undertaking such work albeit that pain relief may be necessary from time to time. We are also satisfied that the applicant's PTSD is such that he can no longer work in an office type environment as would be the usual case with clerical/administrative employment. Further, we are satisfied on the balance of probabilities that the applicant's condition is such that he no longer relates in a tolerable way with other people. Others antagonise and stress him and he reciprocates to others. In essence we are satisfied that the applicant is unemployable in clerical/administrative type employment (section 28). As to paragraph 24(1)(b) we also need to consider whether it is the PTSD alone which rendered the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. There is evidence that the applicant attempted alternative work but his PTSD which manifests as adverse personality traits caused those attempts at work to be unsuccessful. We accept that the applicant's condition is such that further attempts to obtain remunerative work would be futile. Different considerations apply in considering paragraph 24(1)(c) of the Act. In considering that paragraph it is necessary to consider the criteria in sub-section 24(2). Of immediate concern is the fact of voluntary retirement from the public service in December 1994 which clearly, in our view, was a cessation to engage in remunerative work for a reason other than the PTSD. His notice of resignation (T16) makes it clear to us that the applicant retired from his employment because of his dissatisfaction with the workplace. He does not suggest that he was forced to retire by his employer nor does he assert health grounds. Rather he retired, on a voluntary basis, at the first opportunity i.e. immediately upon turning 55 years of age because of a general dissatisfaction with the workplace. However these circumstance took place outside the assessment period. In Bonovich v Repatriation Commission (1986) 69 ALR 395 and Repatriation Commission v Smith (1987) 74 ALR 537 the Federal Court makes it clear that assessment of pension pursuant to section 24 of the Act is to be made in the assessment period being the period from three months before the date of application for pension to the determination of that application by this Tribunal on the circumstances of this case.