Coghill and Repatriation Commission (Veterans' entitlements) - [2018] AATA 2705

Coghill and Repatriation Commission (Veterans' entitlements) [2018] AATA 2705 (7 August 2018)

Division: VETERANS' APPEALS DIVISION

File Number(s): 2016/2907
Re:Robert Coghill
APPLICANT

AndRepatriation Commission
RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member
Date:7 August 2018
Place:Sydney

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

Whether Applicant eligible for Intermediate Rate of Pension or Special Rate of Pension –test for eligibility set out in s 23(1)(b) or s 24(1)(b) of the Veterans’ Entitlements Act 1986 – relevant standard of proof reasonable satisfaction – Applicant’s army service considered eligible and operational service under the Act - Applicant’s accepted conditions and medical opinion considered – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 19, 23, 24, 120, 176, 177

CASES

Chambers v Repatriation Commission (1995) 129 ALR 219

Repatriation Commission v Buckingham [1996] FCA 37
Smith v Repatriation Commission [2014] FCAFC 53

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

Introduction

Mr Coghill is seeking the Special Rate of Pension under s 24 of the Veterans’ Entitlements Act 1986 (the Act). He applied unsuccessfully to the Repatriation Commission on 12 July 2013. The Veterans’ Review Board (VRB) reviewed and affirmed that decision. It held two hearings, one on 3 November 2014 and a second on 1 September 2015.
Mr Coghill has been receiving 100% of the general rate of disability pension since 28 March 2010. The Tribunal will consider whether Mr Coghill is eligible for both the Intermediate Rate of pension (s 23 of the Act) and Special Rate. If he is successful in this case, the parties agreed that the earliest possible date of effect is 2 June 2016 because he applied to the Tribunal more than three months after the VRB’s decision.[1]
[1] ss 176(4)(a) and s 177(2)(b)(ii) of the Act.
The assessment period commenced on 12 July 2013 and ends with the decision of this Tribunal.[2] Provided that a pension was payable at the intermediate or special rate at some time during that period, it will be payable, and if both are applicable, according to “whichever is most recently applicable”.[3]
[2] s 19(9) of the Act.
[3] Smith v Repatriation Commission [2014] FCAFC 53 per Buchanan J at [40].
The relevant standard of proof is reasonable satisfaction.[4] It is accepted that Mr Coghill satisfies the first three criteria under both s 23 and s 24 of the Act which are identical:
(i)He has made an application for an increase in pension;
(ii)He was born on 18 October 1948 had not turned 65 when the claim or application was made on 12 July 2013;
(iii)His degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be at least 70%.
[4] s 120(4) of the Act.
Mr Coghill served in the Australian Army. His service from 18 March 1970 to 12 November 1970 is considered eligible and operational service under…

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.

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Details

Case: [2018] AATA 2705
Decision Date: 7 August 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Coghill for an intermediate or special rate pension under the *Veterans' Entitlements Act 1986* (Cth). The dispute centred on whether Mr Coghill's accepted conditions, in combination with other factors, rendered him incapacitated for remunerative work for periods aggregating more than eight hours per week. The decision was made by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether Mr Coghill met the eligibility criteria for an intermediate rate of pension under section 23(1)(b) of the Act, or a special rate of pension under section 24(1)(b) of the Act. These provisions require the applicant to demonstrate, to reasonable satisfaction, that they are incapacitated for remunerative work for periods aggregating more than eight hours per week due to war-caused injury or disease.

The Tribunal's reasoning focused on the weight given to medical evidence. It preferred the evidence of Dr Smith, finding his report to be thorough. The Tribunal noted that the opinions of Doctors Rosenthal and Chase did not adequately consider the impact of Mr Coghill's bladder cancer diagnosis and surgery on his capacity to work, a factor acknowledged by Doctors Dinnen and Smith. The Tribunal found Dr Chase's expertise in PTSD questionable and his oral evidence unpersuasive, particularly as he had not considered earlier reports. Dr Rosenthal's assessment was also found to be ill-considered regarding the impact of the urostomy bag. The Tribunal found Dr Smith's diagnosis of Major Depressive Disorder persuasive and concluded that Mr Coghill was incapacitated from remunerative work for periods aggregating more than eight hours per week due to a combination of PTSD and Major Depressive Disorder, significantly influenced by his bladder cancer and subsequent surgery. However, the Tribunal was not satisfied that incapacity from war-caused injury or disease *alone* prevented Mr Coghill from undertaking remunerative work otherwise than on a part-time or intermittent basis, or for periods aggregating more than 8 hours per week, during the assessment period.

Consequently, the Tribunal found that Mr Coghill did not satisfy the requirements of section 23(1)(b) or section 24(1)(b) of the Act during the assessment period. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that Mr Coghill has resumed drinking alcohol occasionally, based on his oral evidence. Conclusion The Tribunal preferred the evidence of Dr Smith to the evidence of Doctors Dinnen, Rosenthal and Chase. The consideration of both Doctors Rosenthal and Chase failed to take into account adequately the impact on Mr Coghill’s mental health of his diagnosis of and surgery for bladder cancer which both Dr Dinnen and Dr Smith agreed impacted on his capacity to work. The psychiatric evidence is compelling on that issue. Dr Chase claimed to defer to the psychiatric evidence, but then gave an opinion about the symptoms of PTSD. He does not have that expertise. He had not considered the reports of Dr Dinnen or Dr Smith when he prepared his report. His oral evidence was unpersuasive. Dr Rosenthal did not consider the impact on Mr Coghill of his cancer diagnosis and surgery. His oral evidence about the impact of the urostomy bag was ill-considered and unpersuasive. Dr Smith’s consideration of Mr Coghill’s condition in his report was thorough. The Tribunal did not accept that his deference to Dr Chase’s opinion about capacity to work was justified. It found his reasoning for diagnosing a separate and unaccepted condition of Major Depressive Disorder to be persuasive. The Tribunal finds that in October and November 2016 when Doctors Dinnen, Rosenthal, Smith and Chase examined Mr Coghill, he was incapacitated from undertaking remunerative work for periods aggregating more than eight hours per week because of a combination of PTSD and “currently his comorbid Major Depressive Disorder”. The development of bladder cancer with the need for surgical intervention including prostatectomy and ongoing urinary difficulties was a significant factor in Mr Coghill’s incapacity to work. For the above reasons, the Tribunal is not satisfied that incapacity from war-caused injury or war-caused disease or both, alone, prevented Mr Coghill from undertaking remunerative work otherwise than on a part-time basis or intermittently, or for periods aggregating more than 8 hours per week, at any time during the assessment period. Mr Coghill did not satisfy s 23(1)(b) or s 24(1)(b) of the Act during the assessment period. The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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