Clearihan and Repatriation Commission (Veterans' entitlements) - [2019] AATA 1339

Clearihan and Repatriation Commission (Veterans' entitlements) [2019] AATA 1339 (18 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6423
Re:Keith Clearihan
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:18 June 2019
Place:Melbourne

The Tribunal affirms the decision under review.
.................[sgd].......................................................
Member K Parker
VETERANS’ ENTITLEMENTS – application for special or intermediate rate of pension –veteran served in Vietnam – meaning of “totally and permanently incapacitated” – war-caused skin cancer, prostate cancer and sequelae psychological conditions – “alone test” – consideration of other preventative factors such as age, voluntary redundancy package and non-war-caused spinal condition – improvement in veterans’ capacity for work during the assessment period – “loss of salary and wages” requirement not met - not all eligibility criteria met – eligibility for special rate or intermediate rate of pension not met - decision affirmed
Legislation
Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Re Apthorpe and Repatriation Commission (1986) 9 ALN N157
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] 1 FCR 354
Cavell v Repatriation Commission (1988) 9 AAR 534
Re Easton and Repatriation Commission (1987) 6 AAR 558
Leigh v Repatriation Commission [2006] FCA 395
Lucas v Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Reid (1990) 95 ALR 728
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
Richmond v Repatriation Commission (2014) 140 ALD 380
Smith v Repatriation Commission [2014] FCAFC 53
Summers v Repatriation Commission [2014] FCA 608
Summers v Repatriation Commission [2015] FCAFC 36
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
REASONS FOR DECISION
Member K Parker
18 June 2019
INTRODUCTION

The Applicant, Mr Keith Clearihan, was conscripted and served in the Australian Army between 1965 and 1967. He was deployed to Vietnam in 1966 for about 12 months, primarily based at Nui Dat as a signalman with the Signal Squadron and the 6 Royal Australian Regiment (6RAR).
Mr Clearihan was born in March 1945 and is 74 years old. He has developed a number of physical and psychological conditions, most of which have been accepted by the Department of Veterans’ Affairs (DVA) as being “war-caused”.
In 2013 Mr Clearihan applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (Act). This claim was accepted and he has been paid a general rate of pension under the Act since his claim was accepted.
In 2015 Mr Clearihan applied for an increase to his rate of pension. The Commission decided to increase his general rate of pension to the rate applicable to 80 per cent impairment. The Commission was not satisfied that Mr Clearihan was entitled to receive either the “special rate” or “intermediate rate” of pension under the Act. Mr Clearihan…

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 Clearihan and Repatriation Commission (Veterans' entitlement... 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: [2019] AATA 1339
Decision Date: 18 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr Clearihan against a decision of the Veterans Review Board (VRB) which affirmed an earlier decision by the Repatriation Commission. The Commission had increased Mr Clearihan's disability pension to 80% of the general rate, but found him ineligible for the higher intermediate or special rates. Mr Clearihan sought to be paid the special rate of pension.

The legal issues before the court were whether Mr Clearihan met the requirements for the intermediate or special rates of pension under the *Veterans' Entitlements Act 1986* (Cth). Specifically, the court had to determine if the requirement that incapacity be the sole reason for ceasing employment was met, and if Mr Clearihan suffered a loss of salary or wages due to his war-caused conditions. This involved considering whether his cessation of work was due to his incapacity or other reasons, such as redundancy.

The court considered the evidence regarding Mr Clearihan's medical conditions, including prostate cancer and its treatment, and his reported symptoms of fatigue, nausea, and concentration difficulties. It also noted medical reports indicating his capability to continue clerical work from a psychiatric perspective, and that his retirement was influenced by his age and redundancy. The VRB had found that Mr Clearihan ceased work due to redundancy, not solely due to his incapacity from service-related disabilities, and therefore he did not satisfy the criteria for the special or intermediate rates. The court affirmed the VRB's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Accordingly, the Tribunal has considered the following issues in deciding whether Mr Clearihan is eligible to receive the intermediate rate: (a)is the requirement under s 23(1)(b) of the Act met (applicable by operation of the second limb of s 23(3A)(c))? (incapacitated otherwise than on a part-time basis or intermittently requirement) (b)is the requirement under s 23(3A)(d) of the Act met? (the alone test requirement)(c)is the requirement under s 23(3A)(e) met? (the loss of salary or wages requirement) from which two sub-issues arise:(i)did Mr Clearihan cease to undertake his previous clerical work for reasons other than his incapacity from war-caused conditions?(ii)is Mr Clearihan prevented from engaging in this work for some other reason?FACTUAL BACKGROUNDHistory of Mr Clearihan’s claim and applications On 16 September 2013 Mr Clearihan submitted a claim for the disability pension under the Act in respect of “depression” and “prostate cancer”.[16] [16] Refer Exhibit “A10”. On 24 July 2015 Mr Clearihan made an application for an increase to his rate of disability pension for previously accepted disabilities.[17] This application provided details of a new disability of “impotence”. Mr Clearihan also claimed that his previously accepted disabilities had become worse since they were last assessed. [17] Refer T-Documents T5. DVA’s records show that Mr Clearihan’s “accepted” conditions are listed as:[18] (a)non-melanotic neoplasm of the skin;(b)malignant neoplasm of the prostate;(c)generalised anxiety disorder;(d)major depressive disorder; and (e)erectile dysfunction.[18] Refer DVA’s Veteran Community Details Report attached to the s 37 report lodged with the Tribunal on 20 December 2016 attaching the T-Documents. On 26 November 2015, a delegate of the Commission made a decision to increase Mr Clearihan’s rate of pension to 80% of the general rate, effective from 24 April 2014 (Original Decision).[19] The delegate considered whether Mr Clearihan should be paid the special or intermediate rate of pension. The delegate decided that he was not eligible for either of those higher rates, for the following reasons:[20](a)he applied for redundancy and was made redundant by CitiPower on 5 December 2014;(b)Dr Velakoulis stated, in a medical report dated 29 March 2015, that:(i)Mr Clearihan had told the doctor he was “retired from work”; and(ii)from a psychiatric perspective, Mr Clearihan remained capable of continuing his clerical work for CitiPower, had he not retired; and(c)a discussion with the Commission’s contracted medical officer during which it was “agreed that the prostate cancer would not solely prevent Mr Clearihan from employment, but more his age and the fact he was retired”.[19] Refer T-Documents T11.[20] Refer T-Documents T11/48. On 29 January 2016 Mr Clearihan lodged an application for review of the Original Decision with the VRB, seeking to be paid the special rate of pension.[21] [21] Refer T-Documents T12.

Evidence

Evidence Before The Court

Mr Clearihan said the hormone therapy involved three-monthly injections at first and then “bigger” six-monthly injections. He said the purpose of the hormone therapy was to starve the cancer of testosterone. Mr Clearihan said that the hormone therapy continued for three years.Evidence as to Mr Clearihan’s symptomatology during 2014 Mr Clearihan described his physical symptoms in 2014 as follows: He said he was extremely tired a lot. He said he nearly passed out a couple of times and had to lie down regularly. In terms of his day-to-day life, Mr Clearihan said he could not do some things that he could normally do, such as play tennis. He said he could not lift anything that was “reasonably weighty”. He said it affected his concentration levels and his wife would tell him he was jumping from one thing to another. He said he felt nauseous every couple of days and had hot flushes “almost” nightly. He said the hot flushes did not seem to bother him during the days. The Tribunal notes a letter dated 5 February 2014 authored by Dr Mark Ng Tang Fui, a consultant endocrinologist at Austin Health, to Dr Moffitt who reported, after seeing Mr Clearihan on the same date, as follows:Keith was diagnosed with prostate cancer last year and has undergone surgery and radiotherapy and has commenced ADT in December 2013. He described some mild vasomotor symptoms but is not troubled by this… Mr Clearihan said for exercise, he was only able to go walking. He said his wife coached him to slowly build up the distances he walked. He said that sometimes, he would have to stop. In a letter by Dr Joon dated 17 March 2014 addressed to “To Whom It May Concern”, he described Mr Clearihan’s symptoms as follows:[40]…He has developed some mild urinary symptoms from his radiation therapy and we are still assessing him from the viewpoint of hormonal therapy. It is likely that he will have significant fatigue from his treatments that can last for some months. His prognosis is guarded because of the very high risk nature of his disease. Because of this extensive medical treatment and associated possible side effects together with his multiple medical appointments his wife is presenting assisting as his carer.[40] Refer Exhibit “R6”. In a further letter by Dr Joon dated 18 March 2014 addressed to “To Whom It May Concern”, he stated that Mr Clearihan’s “short to medium outlook is good as he does not have any gross disease” and was “otherwise healthy with very little in terms of significant past medical history”. For this reason, Dr Joon certified Mr Clearihan as being able to travel from a medical perspective.[41][41] Refer Exhibit “R7” at page 118. The Tribunal notes a further letter dated 2 April 2014 authored by Dr Joon to Mr Rogerson which stated that Mr Clearihan had completed his course of radiation. Dr Joon reported as follows:[42]He has tolerated the treatment very well with some minor urinary and bowel irritation but this has now settled. [42] Ibid.

Decision

Reasons for decision

On 26 November 2015, a delegate of the Commission made a decision to increase Mr Clearihan’s rate of pension to 80% of the general rate, effective from 24 April 2014 (Original Decision).[19] The delegate considered whether Mr Clearihan should be paid the special or intermediate rate of pension. The delegate decided that he was not eligible for either of those higher rates, for the following reasons:[20](a)he applied for redundancy and was made redundant by CitiPower on 5 December 2014;(b)Dr Velakoulis stated, in a medical report dated 29 March 2015, that:(i)Mr Clearihan had told the doctor he was “retired from work”; and(ii)from a psychiatric perspective, Mr Clearihan remained capable of continuing his clerical work for CitiPower, had he not retired; and(c)a discussion with the Commission’s contracted medical officer during which it was “agreed that the prostate cancer would not solely prevent Mr Clearihan from employment, but more his age and the fact he was retired”.[19] Refer T-Documents T11.[20] Refer T-Documents T11/48. On 29 January 2016 Mr Clearihan lodged an application for review of the Original Decision with the VRB, seeking to be paid the special rate of pension.[21] [21] Refer T-Documents T12. On 7 July 2016 Dr Robert Moffitt, treating general practitioner, issued a “Work Ability Report, Department of Veterans’ Affairs” in respect of Mr Clearihan.[22] Dr Moffitt stated in this report that in his opinion, Mr Clearihan was “unable to perform any form of gainful employment”.[23] Dr Moffitt also stated that due to all of Mr Clearihan’s accepted disabilities he was unable to work as he was “physically weak and incapable for any physical or manual work” and due to his emotional state he was “unable to work with others, has poor concentration and becomes anxious and depressed”.[24] Dr Moffitt stated that in his opinion, Mr Clearihan’s “accepted disabilities are permanent and will become worse with time”.[25][22] This document was date-stamped as having been received by the VRB on 6 July 2016.[23] Refer T-Documents T15/79.[24] Ibid.[25] Refer T-Documents T15/80. The VRB made a decision on 27 September 2016 affirming the Original Decision. In making this decision, the VRB found as follows:[26]24. The evidence before the Board indicates the veteran’s workplace was restructured, with the loss of most of the positions of the type occupied by the veteran. Although the veteran was on some form of sick leave at that time, he was given the option of applying for a redundancy package or applying for an alternative position. The veteran chose to apply for a redundancy and his application was approved. The Board is of the opinion the veteran ceased work for reasons other than his incapacity from service related disabilities.25. Accordingly, section 24(2B) operates to deem the veteran not to have suffered a financial loss for the purposes of paragraph (e) of section 24(2A) of the Act. As the criteria imposed by section 24(2A) of the Act are cumulative, an inability to satisfy one of these criteria means that the veteran is unable to meet the requirements of eligibility for pension at the Special Rate.26. The criteria for the Intermediate Rate are the same as for the Special Rate, except that the veteran must be unable to work 20 hours per week. The Board’s findings in relation to the application of section 24(2B)(a) and section 24(2A)(e) also apply to section 23(3B)(a) and section 23(3A)(e) and veteran accordingly cannot satisfy the requirements of the latter provisions.[26] Refer T-Documents T2/B7.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.