Coleman and Repatriation Commission (Veterans’ entitlements)

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Coleman and Repatriation Commission (Veterans’ entitlements) [2015] AATA 552 (30 July 2015)

Division VETERANS' APPEALS DIVISION

File Number(s)

2013/0357

Re

Dennis Coleman

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member
Date 30 July 2015
Place Sydney

The Tribunal sets aside the decision under review, and substitutes a decision that the Applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 27 April 2012, the day after the Applicant ceased work.

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

Ms N Isenberg, Senior Member

CATCHWORDS

Veterans Affairs - veterans' entitlements — pension — special rate – whether Applicant satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 – whether Applicant is prevented from undertaking remunerative work by reason of incapacity from war-caused injuries alone – whether Applicant is suffering a loss of wages or earnings which he would not be suffering if he were free of that incapacity – decision under review set aside and substituted – Applicant entitled to pension at the special rate

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s24

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy [2002] FCAFC 424

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

Ms N Isenberg, Senior Member

30 July 2015

BACKGROUND TO THE APPLICATION

  1. The Applicant lodged a claim pursuant to the Veterans’ Entitlement Act 1986 ("VE Act") for ‘heart disease’ and lumbar spondylosis on 2 March 2012. The Respondent accepted the claim for ischaemic heart disease but did not accept the claim for lumbar spondylosis. The Applicant's disability pension was continued at the Intermediate Rate of pension.

  2. On 22 May 2012, the Applicant applied to the Veterans Review Board (VRB) for a review of the Respondent’s decision. The VRB set aside the decision in relation to lumbar spondylosis and substituted its decision that the condition is war-caused. The VRB however affirmed the decision in relation to the Applicant's rate of pension, and the Applicant remained entitled to pension at the Intermediate Rate.

  3. On 23 January 2013 the Applicant sought review by this Tribunal, claiming that he is entitled to the Special Rate of pension.

    ISSUE FOR DETERMINATION

  4. The issue before the Tribunal is whether Mr Coleman satisfies s 24(1)(c) of the VE Act, that is:

    ·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and

    ·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.

    BACKGROUND

  5. The Applicant was born on 14 July 1949 and is 66 years of age. He served in the Australian Army from 7 November 1967 to 6 November 1973. His eligible war service was from 8…

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Details
Case
[2015] AATA 552
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal was a review of a decision by the Repatriation Commission concerning the entitlement of Mr Coleman to a pension at the special rate under the Veterans’ Entitlements Act 1986 (Cth). The primary issue before the Tribunal was whether Mr Coleman satisfied the criteria under s 24(1)(c) of the Act, specifically, whether he was prevented from continuing to undertake remunerative work due to incapacity from war-caused injuries alone, and whether this incapacity resulted in a loss of wages or earnings he would not suffer if he were free of that incapacity.

In examining the evidence presented, the Tribunal focused on Mr Coleman's capacity to perform remunerative work, particularly as a security guard, and the extent to which his war-caused conditions, specifically Post Traumatic Stress Disorder (PTSD) and lumbar spondylosis, contributed to his inability to work. The Tribunal had to determine if these conditions were the sole reason preventing him from continuing in his employment. The medical evidence indicated that Mr Coleman's mental health deteriorated significantly, leading to a breakdown and hospitalisation, and his condition was exacerbated by events that were beyond his control. The Tribunal also considered the report of Dr Murray, who opined that Mr Coleman was totally and permanently disabled in terms of employment due to his PTSD.

The Tribunal found that Mr Coleman was indeed prevented from continuing to undertake remunerative work by his war-caused conditions, and that this incapacity resulted in a loss of earnings. The Tribunal determined that his PTSD and lumbar spondylosis were the primary factors preventing him from working, and that he was suffering a loss of earnings as a direct consequence of these conditions. Consequently, the Tribunal set aside the decision under review and substituted it with a decision that Mr Coleman is entitled to a pension at the special rate, effective from the date he ceased work.

The Tribunal's decision hinged on the clear evidence that Mr Coleman's war-caused conditions, specifically his PTSD and lumbar spondylosis, were the sole reasons preventing him from continuing in his employment as a security guard, and that this incapacity resulted in a loss of earnings he would not suffer otherwise. This finding aligns with the criteria under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue before the Tribunal is whether Mr Coleman satisfies s 24(1)(c) of the VE Act, that is:·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.BACKGROUND The Applicant was born on 14 July 1949 and is 66 years of age. He served in the Australian Army from 7 November 1967 to 6 November 1973. His eligible war service was from 8 February 1969 to 5 March 1970 in Vietnam. He also rendered eligible service from 7 December 1972 until 6 November 1973. Subsequently the Applicant served for more than a year in the Army Reserve. In addition to ischaemic heart disease and lumbar spondylosis, the Applicant has the following accepted conditions:·Malaria ·Shrapnel Wounds of thighs, back, left forearm and left buttock·Right Sensorineural Deafness ·Tinea ·Generalised Anxiety Disorder/Post Traumatic Stress Disorder ·Tension headaches·TinnitusLEGISLATION Sub-sections 24(1)(c) and 24(2)(a) of the VE Act relevantly provide as follows:(1) This section applies to a veteran if:…(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 if the veteran were free of that incapacity; and…(2) For the purpose of paragraph (1)(c):(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …” If s 24(1) of the VE Act applies to Mr Coleman, he will be entitled under s 24(4) to a pension at the special rate.MR COLEMAN’S EVIDENCE The Applicant gave evidence that he had been doing security work but had to leave ‘mainly to do with [his] PTSD problems’. He referred to stress, anxiety, mood swings, depression, flashbacks, anger and guilt. About 10 years ago he ‘had a breakdown’ and was hospitalised for 3 weeks. Since that time he has been under psychiatric care, but self-medicated with drugs and alcohol. He said he finished work completely about 2 years ago, but his evidence, somewhat confusingly, was that he had worked 8-10 years ago, and only casually – an average of about 6 hours per week. He said he last worked fulltime about 15 years ago. He found the work stressful, and was not able to work at night because of flashbacks and anxiety.

Evidence

Evidence Before The Court

In reference to the evidence given before the VRB, the Applicant did not think he had intentionally overstated the condition of his feet, but rather was trying to ‘cover all the points’, and had ‘bundled’ all his physical problems into one.MEDICAL EVIDENCE The Applicant relied on the report of Dr Alexander Murray, Consultant Psychiatrist, dated 15 October 2009, who had first treated the Applicant in mid-2007. He wrote:… Mr. Coleman suffers Post Traumatic Stress Disorder as a result of military service... Mr. Coleman tells me that he is incapable of working regular hours (either part-or full time) as he cannot predict from one day to the next how his mental state might be. Mr. Coleman finds that intervening events, including events well within the normal range of domestic experience, can provoke an upsurge of irritability, anxiety, aggression or rumination... On 1 February 2012 Dr Murray reported:[The applicant] presented today for review. He has been feeling progressively less well over the last eighteen months and describes growing difficulties with irritability, intolerance, startle and pervasive apprehension, anxiety at work, nightmares and insomnia. Alcohol consumption has been consistent...Dennis has been sufficiently unwell to have had to cut back work. Dr Murray reported on 6 September 2012:Dennis ceased work as a result of how symptoms of PTSD, worse at night, limited his ability to work as his employer preferred. This led to a disagreement and "a parting of the ways ".Dennis tells me that he is now marked in the local security industry as having “a problem with anxiety”. Dennis secured the job described on the strength of word of mouth endorsement- this he now does not have.Dennis was able to work in that capacity only out of how the job allowed flexible hours that he was able to manage around his mental state.Dennis having been in employment only out of how that employment accommodated his mental state, that employment having ceased because of how his mental state has deteriorated beyond what his employer was willing to accommodate and his reputation now being that he is mentally impaired, I have the view that Dennis is totally and permanently disabled in regards to employment as a result of his PTSD. The Applicant also relied on the medical report of Dr Thomas Rosenthal, Occupational Physician, dated 1 October 2013. Dr Rosenthal also gave evidence. Dr Rosenthal wrote:In terms of physical restrictions he is now unable to stand and walk for long periods. He can't sit for long periods and he can't drive for more than 30 minutes. His mobility is clearly affected and appears this is due to his accepted disabilities. Dr Rosenthal provided an employment history in his medical report and reports:It appears that he was still able to do up to 10 hours a week of security work in 2012. His physical condition may or may not have changed around that time but he has slowly been getting worse in terms of his chronic pain and back pain over several years. His psychological condition may have had more of an impact in determining the reasons for him stopping work.

Decision

Reasons for decision

I find that the Applicant, by reason of being prevented from continuing to undertake work as a security guard is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his accepted disabilities.DECISION The Tribunal sets aside the decision under review, and substitutes a decision that the Applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 27 April 2012, the day after the Applicant ceased work.

Ratio Decidendi

Legal Principle Established

Dr Darveniza reported that the Applicant suffered peripheral neuropathy, almost certainly diabetic in origin and had done so for the past 2 or more years. He regarded the peripheral neuropathy as ‘quite mild’. His only significant symptom was ‘perhaps a slight loss of balance’ which would preclude working at heights.CONSIDERATION The Applicant contended that he has satisfied the legislative criteria with respect to having a combined impairment that, when assessed in accordance with the GARP, would produce a disability pension rate in excess of 70%, thereby entitling him for an assessment at the Special Rate pension. There was no dispute that Mr Coleman met the first criterion under s 24 namely, an entitlement to a pension at a rate higher than 70% of the general rate: s 24(1)(a)(i). Further, the Applicant contended that had he not been suffering from his war-caused conditions he would have continued to work and would not be suffering from a loss of salary, wages or earnings. Entitlement to the Special Rate of pension is properly considered in accordance with Flentjar v Repatriation Commission (1997) 48 ALD 1 (‘Flentjar’). Flentjar determined that proper consideration of s 24(1)(c) required responses to the following four questions: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 account that he would not be suffering if he were free of that incapacity? Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. 1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act? This is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. In the present matter, I find that the type of work which the veteran had previously undertaken was as a security guard.2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? The second question in Flentjar is whether the Applicant, by reason of his war-caused conditions, is prevented from continuing to undertake that type of work. The Respondent conceded that s 24(1)(b) is satisfied. I agree that the Applicant’s accepted disabilities, especially his PTSD and his lumbar spondylosis, prevented him from continuing to undertake security 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?