Crooks and Repatriation Commission - [2001] AATA 922

DECISION AND REASONS FOR DECISION [2001] AATA 922

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/475

VETERANS' APPEALS DIVISION          )
           Re      BERNARD CROOKS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Rear Admiral A R Horton, Member Dr M E C Thorpe, Member

Date 7 November 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review. The Tribunal decides that the Applicant qualifies for payment of Disability Pension at the special rate with effect from the first pension payday on or after 19 April 1999.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – application for pension at the special rate – Disability Pension – post traumatic stress disorder an accepted disability – lumbar spinal problem a non-accepted condition - operational service – eligible service – application for increase in pension – inability to undertake remunerative work due to war caused disabilities alone – standard of proof – not genuinely seeking to engage in remunerative work
Veterans' Entitlements Act 1986, sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 19(3), (5), (6), (9) (definition of "assessment period"), 21(1), 24(1), (2), 24A, 28, 120(4).
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Braund (1991) 23 ALD 591
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Anthony Bryce Brennan and Repatriation Commission (1996) 42 ALD 191
Re James William Bonner and Repatriation Commission (1989) 17 ALD 680
Re Hornery and Repatriation Commission (1998) 52 ALD 333

REASONS FOR DECISION

Mr M J Sassella, Senior Member Rear Admiral A R Horton, Member Dr M E C Thorpe, Member

History of the application

On 19 April 1999 Mr Bernard Crooks ("the Applicant") lodged an application with the Repatriation Commission ("the Respondent") for an increase in his Disability Pension (T17). He currently receives a Disability Pension at 100% of the general rate. He stated on the application that his post traumatic stress disorder ("PTSD") "has become progressively worse" and that he had been advised by his psychiatrist that he would never work again because of this PTSD symptoms.
On 18 June 1999 the Respondent rejected the application for an increase in Disability Pension (T21). This decision stated that it was the Applicant's back injury, a non-accepted condition, that was preventing him from working, not the PTSD symptoms.
On 28 June 1999 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the Repatriation Commission decision (T22).
The decision under review
On 14 February 2000 the VRB affirmed this decision (T24). It was determined that it was not the Applicant's PTSD alone that affected his capacity to work. The VRB noted that the Applicant's emotional and behavioural conditions predated the back condition, starting from at least 1984. The VRB further noted that the Applicant's work-related accident in 1991 was the cause of the termination of his employment. The Applicant has received a workers compensation settlement in respect of the diagnosis of a low back injury.
On 27 February 2000 the Applicant lodged an application…

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 Crooks and Repatriation Commission

Details

AGLC: Crooks and Repatriation Commission [2001] AATA 922
Case: [2001] AATA 922
Decision Date: 7 November 2001

CaseChat Overview and Summary

The case involves an application for a pension at the special rate by a veteran, Crooks, who suffered from post-traumatic stress disorder (PTSD) and a lumbar spinal problem. The application was denied by the Repatriation Commission and subsequently upheld by the Veterans' Review Board. Crooks appealed to the Administrative Appeals Tribunal. The central legal issues were whether Crooks' incapacity to undertake remunerative work was due solely to war-caused injury or disease, and if he was genuinely seeking to engage in such work despite his incapacity. The Tribunal had to determine if Crooks met the criteria under sections 24(1) and 24(2) of the Veterans' Entitlements Act 1986.

The Tribunal examined the evidence to determine if Crooks' incapacity to work was solely due to his war-caused injuries or diseases. The Tribunal found that while Crooks' PTSD was a war-caused condition, his lumbar spinal problem was not. The Tribunal concluded that it was not the war-caused injury or disease alone that prevented Crooks from continuing to undertake relevant work, as his emotional and behavioural conditions predated the back condition. Therefore, Crooks did not qualify for the special rate of pension under section 24(1) of the Act. However, the Tribunal also considered if Crooks qualified under the ameliorating provision of section 24(2)(b) of the Act. This provision applies if the veteran is genuinely seeking to engage in remunerative work but is unable to do so because of their war-caused incapacity. The Tribunal found that Crooks had not been genuinely seeking to engage in remunerative work, despite his PTSD being the substantial cause of his inability to obtain such work.

The Tribunal ultimately decided that Crooks did not meet the criteria for the special rate of pension under either section 24(1) or 24(2)(b) of the Act. The Tribunal's decision was based on its reasonable satisfaction that Crooks' incapacity to undertake remunerative work was not solely due to war-caused injury or disease, and that he had not been genuinely seeking to engage in such work. The Tribunal's decision was affirmed, and the application for review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the Applicant's statement of 12 March 2001 (Exhibit A5) the Applicant describes, in vague terms, his attempts to find work and his registration at the Cardiff and Wallsend CES branches. There is considerably more evidence on this matter canvassed below in paragraphs 101-106.Medical evidence On 12 February 1971 the Applicant's army medical discharge card (T3, pp8-9) noted, among other conditions, severe headaches, bed-wetting and nail-biting, a back or joint injury and a severe head injury. The head injury was prior to entry into the service, the Applicant being unconscious for a short time. The back injury was sustained in Kapooka while playing football and there had been recurrences of the pain since his time in South Vietnam. In a medical report of 4 January 1993, Dr McGuirk stated in relation to the Applicant's back pain complaint, "I don't think there is any doubt that this man's current condition is unrelated to the alleged original injury in December 1991…however…the nature and conditions of his employment are consistent with the findings that currently exist and the time frame described ie September, would be consistent and as such liability I believe should be accepted in respect of the latter" (Exhibit R8, p61). On 3 February 1993 Dr Harrington stated that the Applicant wants and should go back to work providing there are no restrictions placed on his back for a further six weeks (Exhibit R8, p63). On 13 April 1993 Dr Smyth, surgeon, completed a medical report on the Applicant in relation to his work injury of 4 December 1991 (T4). The Applicant reported lower lumbar region pain every day and tingling in his right thigh and toes. His back restrictions added up to an 11% whole person impairment. Taking into consideration the Applicant's disc herniation this becomes 18% whole person impairment. In relation to the Safety, Rehabilitation and Compensation Act 1988 this becomes 30% permanent impairment of the back. The impairments "are directly related to the incident of 4 December 1991." On 22 June 1993 the Applicant completed a rehabilitation program at Hunter Rehabilitation Service (T5). The resulting report stated the diagnosis as disc herniation, with no "bony injury and the joints are normal." It was recommended that the Applicant not return to work as a crane driver and that he continue with a fitness program. On 12 August 1993 Dr Nield completed a report for the workers compensation insurer in relation to the Applicant's claim for compensation. He found no diagnosis of the back condition that related to any workplace accident, however he did report that "he is a grossly dissipated man with a florid complexion, swollen eyes and a gross tremor" (Exhibit R8, p119). On 27 April 1994 Dr Ang found early spondylosis and minimal wedge deformity (Exhibit R8, p70). In an undated medical report on permanent incapacity (T7) Dr McQualter described the Applicant as depressed and anxious and as having poor lumbar spine mobility in all directions. The major diagnosis was chronic PTSD, with a minor diagnosis of generalised anxiety and depressive illness. He stated that the Applicant left his previous employment due to lumbar disc back injury. He described the Applicant as unfit for any work while his psychological disorder was untreated.

Decision

Reasons for decision

On 28 June 1999 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the Repatriation Commission decision (T22). The decision under review On 14 February 2000 the VRB affirmed this decision (T24). It was determined that it was not the Applicant's PTSD alone that affected his capacity to work. The VRB noted that the Applicant's emotional and behavioural conditions predated the back condition, starting from at least 1984. The VRB further noted that the Applicant's work-related accident in 1991 was the cause of the termination of his employment. The Applicant has received a workers compensation settlement in respect of the diagnosis of a low back injury. On 27 February 2000 the Applicant lodged an application for review with the Administrative Appeals Tribunal ("the Tribunal") (T1).Relevant legislation The following are the relevant provisions from the Veterans' Entitlements Act 1986 ("the Act"): sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 19(3), (5), (6), (9) (definition of "assessment period"), 21(1), 24(1), (2), 24A, 28, 120(4)."6C Operational service - post World War 2 service in operational areas (1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…""7 Eligible war service(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…""9 War-caused injuries or diseases(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…""13 Eligibility for pension(1) Where: … (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act.…""15 Application for increase in pension(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed. …(3) An application under subsection (1) or (2): (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.…""19 Determination of claims and applications …(3) The Commission shall determine a claim for a pension as follows: (a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or(ii) the death of a veteran that was war-caused; (b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5). …(5) Where paragraph (3) (b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess, in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable: (a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and (b) subject to subsection (6), the rate at which the pension is payable from the date of the determination;and shall make a determination approving the payment of pension in accordance with that assessment.(6) Where the Commission has, pursuant to paragraph (5) (a), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period. …(9) In this section:application means an application made in accordance with section 15;application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means: (a) the day on which the claim or application was received at an office of the Department in Australia; or (b) if subsection 20 (2) or 21 (2) applies to the person—the day on which the claim or application referred to in paragraph 20 (2) (a) or 21 (2) (a) was so received; assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined;claim means a claim made in accordance with section 14;relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used: (a) in support of the claim or application; or (b) if a part only of the claim or application was granted—in support of that part of the claim or application.""21 Date of operation of grant of application under section 15(1) The Commission may, subject to this Act, approve payment of pension at the increased rate, or payment of pension, from and including the date on which the application, in accordance with a form approved for the purposes of paragraph 15 (3) (a) was received at an office of the Department in Australia.…""24 Special rate of pension(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 if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran.(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; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.…""24A Continuation of rates of certain pensions(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless: (a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person; (b) in the case of a veteran to whom section 23 applies:(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or (c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week. (2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.""28 Capacity to undertake remunerative workIn determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only: (a) the vocational, trade and professional skills, qualifications and experience of the veteran; (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).""120 Standard of proof…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.…"

Ratio Decidendi

Legal Principle Established

In his oral evidence Mr Cox said that he worked for Structural Cranes for 12 years. Four or five others had been found light duties. A Mr Ian Bartrop, for example, had had a back fusion, could no longer work as a crane driver, and was trained into a supervisory office position. He had similar qualifications as Mr Crooks. Some were able to operate a crane after others did the hard preparatory work for them. Mr Cox had drafted a letter to the Applicant suggesting that the firm might be able to offer him light duties. The owner of the firm vetoed that letter and had the Applicant dismissed instead. Tribunal's consideration The Tribunal considers the following elements from the medical evidence of particular relevance: The Tribunal therefore finds to its reasonable satisfaction that the answer to question 9 is no, that it is not the war-caused injury or disease alone that in the assessment period prevents the Applicant from continuing to undertake the relevant work.Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity (s 24(1)(c) of the Act and Flentjar (supra))? This question does not arise given the answer to question 9 and the consequent finding. However, had the Tribunal resolved question 9 in the Applicant's favour, the Tribunal considers that the answer to question 10 would have been yes. Being unable to continue his work as a crane driver, and having to rely only on his pension entitlements, the Applicant would be taken to have lost wages as a result of his war-caused injury or disease. This result will become important if the Applicant can succeed as a result of s 24(2)(b) of the Act. Additional questions arising from s 24(2)(b) of the Act The ameliorating provision, s 24(2)(b) of the Act, can assist a veteran where he or she fails to qualify for special rate under s 24(1) of the Act in certain situations. The decision-maker must be able to make the following findings in relation to the veteran: That he or she is aged under 65. That he or she has not been engaged in remunerative work. That he or she has been genuinely seeking to engage in remunerative work. That he or she would, but for the war-caused incapacity, be continuing to seek to engage in remunerative work. That the war-caused incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage Special rate can be paid if these conditions are regarded as met. In the present case the Applicant is aged under 65, has not been engaged in remunerative work since 1992 or 1993 and has a war-caused disease, PTSD, that is the substantial cause of his inability to obtain remunerative work. Drs Baz, Shand and Westerink support that last point. The fundamental issue of contention is whether the Applicant has been genuinely seeking to engage in remunerative work.