Connell and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 653

Connell and Repatriation Commission (Veterans’ entitlements) [2015] AATA 653 (31 August 2015)

Division

Veterans’ Appeals Division

File Number(s)

2014/3035

Re

Paul Connell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 31 August 2015

Place Sydney
The Tribunal affirms the decision under review.

...........................................
Senior Member J F Toohey
CATCHWORDS – veterans entitlements – special rate of pension – whether applicant incapable by reason of accepted conditions alone from undertaking remunerative work of eight or more hours a week – whether applicant prevented from continuing in remunerative employment by reason of accepted conditions alone – whether applicant ceased remunerative employment for reasons other than accepted conditions – decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 ss 19, 24, 28, 120(4)
Cases
Repatriation Commission v Richmond [2014] FCAFC 124
Flentjar v Repatriation Commission (1997) 48 ALD
Repatriation Commission v Hendy (2002) 76 ALD 47
Starcevich v Repatriation Commission (1987) 18 FCR 221
Collins v Repatriation Commission, 33 ALD 557
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
Secondary Materials
Guide to the Assessment of Rates of Veterans’ Pensions
REASONS FOR DECISION
Senior Member J F Toohey
31 August 2015
Background

Mr Paul Connell served in the Australian Regular Army from May 1980 until his discharge in July 2000. His service is eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
After his discharge, Mr Connell transferred to the Army Reserves where he worked full-time until 2010. He then worked for a time in Darwin as an operations manager before moving to Nowra around the end of 2011. From July 2012 until February 2014, he worked as a store person filling orders for aircraft spare parts at HMAS Albatross. He is now 52 years old.
Mr Connell fractured his spine in a parachuting incident in 1988 as a result of which, in December 1991, he underwent a spinal fusion. He receives a disability pension at 70 per cent of the general rate for his accepted conditions of chronic instability of both ankles, lumbar spondylosis, bilateral chondromalacia patella, bilateral muscular shoulder sprain and osteoarthritis affecting both ankles.
As well as the disabilities accepted for the purposes of his disability pension, Mr Connell suffers from right acromio-clavicular joint disruption as a result of a motorcycle accident in about 1997 and a consequent shoulder reconstruction around the same time. He has also been treated for anxiety and depression since February 2014 and has recently been diagnosed as suffering from post-traumatic stress disorder (PTSD).
Mr Connell seeks review of a decision of the Veterans’ Review Board (VRB) on 2 May 2014 which affirmed a decision of the Repatriation Commission that he is entitled to a disability pension at 70 per cent of the general rate but not to the special rate of pension.
Legislation
To qualify for the special rate of pension, Mr Connell must satisfy the criteria in s 24(1)…

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: [2015] AATA 653
Decision Date: 31 August 2015

CaseChat Overview and Summary

In the case of Connell and Repatriation Commission, the Tribunal was tasked with determining whether Mr Connell qualified for a special rate of pension under the applicable legislation. Mr Connell, a veteran, argued that his war-caused incapacity rendered him incapable of undertaking remunerative work for periods aggregating eight or more hours per week. The Tribunal was required to decide if Mr Connell's cessation of employment was due solely to his war-caused incapacity, as required by sections 24(1)(b) and 24(1)(c) of the relevant Act.

The Tribunal considered Mr Connell's evidence and circumstances surrounding his employment with Raytheon Australia Pty Ltd. Mr Connell had worked full-time since July 2012, but ceased work on 28 February 2014 due to pain from his accepted conditions and the medication he was taking to manage that pain. While Mr Connell contended that his accepted conditions alone prevented him from continuing in his employment, the Tribunal found that his psychological conditions also played a significant role in his decision to cease employment. The Tribunal was not satisfied that Mr Connell's war-caused incapacity, of itself alone, rendered him incapable of undertaking remunerative work for periods aggregating eight or more hours per week, as required by section 24(1)(b) of the Act. Additionally, the Tribunal found that Mr Connell ceased to engage in remunerative work for reasons other than his war-caused incapacity, which meant that he did not satisfy section 24(1)(c) of the Act.

The Tribunal's reasoning led to the conclusion that Mr Connell's claim for a special rate of pension could not succeed. The decision under review was affirmed, and the Tribunal's orders were that the decision under review be upheld.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent Commission contends that Mr Connell does not satisfy either s 24(1)(b) or (c) during the assessment period.Mr Connell’s evidence When he ceased work on 28 February 2014, Mr Connell had been working full-time, eight hours a day, since July 2012 as a store person for Raytheon Australia Pty Ltd in Nowra. His position involved taking work orders for helicopter spare parts, recording the transaction on a computer, locating the part from the appropriate storage section and issuing it over the counter. Most of the parts were small and stored in bins; if the order involved heavy parts, Mr Connell would ask a colleague for help to move them. Mr Connell has not worked since leaving Raytheon. He gave evidence that he was unable to continue working because of a combination of the pain from his accepted conditions and the medication he was taking to manage his pain. While the medication worked “to a degree”, he said, the pain would override it after a time and he would have to take more medication. He could not concentrate or focus on his work, especially the computer work, and he had constantly to ask his offsider for help. He felt under pressure because of the serious consequences if he filled an order with the wrong spare part. Mr Connell gave evidence that Raytheon took him on knowing about his injuries and he felt obligated not to take sick leave; on the occasions that he did, he made up “a fictitious sickness” rather than let on the real reason. His personnel file from Raytheon does not indicate the occasions he took sick leave but I understand his evidence to be that, in any event, he took few days off. In a letter dated 18 June 2013 addressed “To whom it may concern”, Mr Connell’s general practitioner, Dr John Thomson, certified him unfit for work on 18 and 19 June 2013 “due to a medical illness”. Dr Thomson’s clinical notes for 18 June 2013 show that Mr Connell had been “unwell with URTI, symptoms for past week” and he prescribed antibiotics. His notes for 9 September 2013 show he wrote a “Sick certificate” after Mr Connell presented with “ongoing right shoulder pain/reduced ROM” The clinical records appear consistent with Mr Connell’s evidence that he took little time off work for any reason. Mr Connell refutes any suggestion that he was able to do his work at Raytheon and just decided “to give it away”. He gave evidence that he had been thinking about stopping work for five or six months but stayed because he liked the job and worked with good people, but it got to the point where he “just struggled” even to send an email. His evidence about his reasons for ceasing employment is considered further below. In a written statement on 30 September 2014 in these proceedings, Mr Connell stated that he was unable to lift, sit, stand or bend for prolonged periods; on most days he struggled to get in or out of bed and sometimes had to make his bed while on his knees because he could not bend over; he struggled getting dressed and putting on his shoes because of his severe back pain; at times his (then) partner had to dry the lower half of his body and he struggled to go to the toilet. He stated that he no longer did as much gardening as was needed to maintain his yard and, when he mowed the lawns, he had to rest for the remainder of the day. He seldom ventured out to do the grocery shopping when in severe pain; he could no longer participate in activities he enjoyed such as riding motorcycles or his pushbike; he could no longer attend the gym, or play football or baseball, and he was “unable to interact” with his son. He struggled to get in and out of smaller cars, and his ability to turn and look over his shoulder for traffic was restricted and he had to stop every two hours when driving or a passenger for long distances.

Decision

Reasons for decision

I am satisfied that Mr Connell’s psychological conditions played a part in his ceasing employment. That part cannot be discounted as insubstantial. It follows that he cannot be taken to be suffering a loss of salary or wages or income by reason of his accepted incapacity and his claim must fail.Conclusion For these reasons, I am not satisfied that Mr Connell’s war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating eight or more hours per week. It follows that he does not satisfy s 24(1)(b) of the Act. Even if I were so satisfied, I am not satisfied that Mr Connell meets s 24(1)(c) of the Act. In particular, I find that he ceased to engage in remunerative work for reasons other than his war-caused incapacity. It follows that his claim cannot succeed. I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	Veterans’ Appeals Division
File Number(s)	2014/3035
Re	Paul Connell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	31 August 2015
Place	Sydney