Dorsett and Repatriation Commission (Veterans' entitlements) - [2018] AATA 2241

Dorsett and Repatriation Commission (Veterans' entitlements) [2018] AATA 2241 (12 July 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/2219
Re:Phillip Dorsett
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 July 2018
Place:Brisbane

The decision under review is affirmed.
...............................[Sgd]....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – application for special rate of pension – conditions of post-traumatic stress disorder and alcohol dependence – whether non-accepted conditions prevented the applicant from undertaking employment – whether other factors prevented the applicant from undertaking employment – alone test not satisfied – ameliorating provisions not satisfied – decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Sheehy v Repatriation Commission [1996] FCA 1516
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Watkins [2015] FCAFC 10
Beezley v Repatriation Commission [2015] FCAFC 165
Summers v Repatriation Commission [2015] FCAFC 36
Owen v Repatriation Commission (1995) FCA 1428
Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364
Smith v Repatriation Commission [2014] FCAFC 53; (2014) 142 ALD 410
Husband v Repatriation Commission (2000) FCA 356
SECONDARY MATERIALS
Statement of Principles concerning Fibromyalgia – Instrument no. 14 of 2014
Statement of Principles concerning Chronic Fatigue – Instrument no. 12 of 2014
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 July 2018
INTRODUCTION

The applicant, Mr Phillip Dorsett, served in the Australian Army (“the Army”) from 4 February 1975 to 4 July 2006, a period of more than 31 years. Prior to his discharge from the Army the applicant served in the role of Regimental Quartermaster Sergeant, Warrant Officer Class 1. The applicant is now 65 years of age and has not undertaken any remunerative work since the time of his discharge.
The applicant has a number of medical conditions which have been accepted by the respondent as war-caused, including post-traumatic stress disorder, alcohol dependence, and ischaemic heart disease. The applicant currently receives 100% of the general rate of the disability pension from the Department of Veterans’ Affairs (“DVA”).
The applicant now seeks to qualify for receipt of the special rate of the disability pension.
BACKGROUND
On 1 November 2013 the applicant lodged a claim with DVA for the conditions of post-traumatic stress disorder and alcohol dependence. On 10 April 2014 DVA accepted these conditions with effect from 1 August 2013, and the result was that the applicant’s pension was continued at 100% of the general rate.[1]
[1] Exhibit A, T-Documents, T13.
In their decision DVA identified the reason that disability pension at the special rate was not granted as: “[the applicant] retired from the workforce in 2006, has not worked since that time and is not currently seeking further employment.”[2] It was also noted that time out of the workforce would have contributed considerably to the applicant’s inability to work.
[2] Ibid at p. 77.
On 1 July 2014 the applicant requested a review of the decision dated…

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 2241
Decision Date: 12 July 2018

CaseChat Overview and Summary

This matter concerned an application by the applicant, Mr Dorsett, for the special rate of disability pension under the *Veterans' Entitlements Act 1986* (Cth). The applicant had lodged claims for post-traumatic stress disorder (PTSD) and alcohol dependence, which were accepted by the Department of Veterans' Affairs (DVA). The dispute arose because the DVA determined that the applicant was not entitled to the special rate of pension, as he had retired from the workforce in 2006 and was not currently seeking employment, with other factors contributing to his inability to work. The applicant sought a review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the special rate of pension under section 24 of the Act. Specifically, the Tribunal had to determine if the applicant was "totally and permanently incapacitated" and, crucially, if he was, by reason of his accepted war-caused conditions alone, prevented from continuing to undertake remunerative work. This involved examining whether non-accepted conditions or other factors played a role in his inability to work, thereby potentially failing the "alone" test.

The Tribunal applied the established principle from *Repatriation Commission v Watkins* and other Federal Court decisions, which holds that the "alone" requirement is not satisfied if non-war-caused factors contribute to preventing a veteran from engaging in remunerative work, even if those factors are of secondary importance. The Tribunal found no evidence that the applicant was prevented from continuing remunerative employment by reason of his accepted conditions alone. While the applicant's PTSD and alcohol dependence were accepted, the Tribunal noted that other factors, including his muscle and bone pain (which were not accepted as distinct conditions), his age, lack of recent work experience, and personal preferences, were considered by the respondent to have prevented him from obtaining work. The Tribunal concluded that the applicant did not satisfy the "alone" test under section 24(1)(c) of the Act.

Consequently, the Tribunal affirmed the decision of the respondent, finding that the applicant was not entitled to pension at the special rate. The applicant's disability pension was continued at 100% of the general rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant now seeks to qualify for receipt of the special rate of the disability pension.BACKGROUND On 1 November 2013 the applicant lodged a claim with DVA for the conditions of post-traumatic stress disorder and alcohol dependence. On 10 April 2014 DVA accepted these conditions with effect from 1 August 2013, and the result was that the applicant’s pension was continued at 100% of the general rate.[1] [1] Exhibit A, T-Documents, T13. In their decision DVA identified the reason that disability pension at the special rate was not granted as: “[the applicant] retired from the workforce in 2006, has not worked since that time and is not currently seeking further employment.”[2] It was also noted that time out of the workforce would have contributed considerably to the applicant’s inability to work.[2] Ibid at p. 77. On 1 July 2014 the applicant requested a review of the decision dated 10 April 2014 by both DVA and the Veterans’ Review Board (“VRB”) under sections 31 and 136 of the Veterans’ Entitlements Act 1986 (“the Act”). On 10 July 2014 a delegate from DVA refused the applicant’s request for a reconsideration, citing that they were “not reasonably satisfied that the reasons you ceased work were due to your accepted disabilities alone”.[3][3] Exhibit A, T-Documents, T15, at p. 82. On 5 March 2015 the VRB affirmed the decision of 10 April 2014. The applicant then applied to this Tribunal for a review of the decision. On 3 March 2016 a hearing was held in this matter. At this time it was discovered that the applicant had experienced medical symptomology which had not been previously considered by the respondent. The hearing was adjourned to allow the applicant sufficient time to lodge a claim for bone and muscle pain with the respondent. On 7 April 2016 this claim was submitted by the applicant. On 14 September 2016 a decision was made by DVA to reject the applicant’s claim. It was found that no medical condition was present to answer the claim for ‘bone pain’ and ‘multiple muscle pain’. LEGISLATIVE FRAMEWORK The applicant’s service in the Army is ‘defence service’ for the purposes of s 68 of the Act. The standard of proof to be applied in this matter is outlined in section 120(4) of the Act. I must determine all relevant issues to my reasonable satisfaction, and decide, on the balance of probabilities, the correct rate of pension to which the applicant is entitled. To be eligible for pension at the special rate, the requirements of section 24 of the Act must be met. Section 24 provides: 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) …(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; …(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; …(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.

Evidence

Evidence Before The Court

Sections 23 and 25 of the Act do not apply in this matter as the applicant has not worked since the time of his discharge in 2006, and he was not over the age of 65 at the time of his claim. EVIDENCE: ACCEPTED CONDITIONSThe Applicant The applicant provided a statement in support of his application and also gave extensive evidence at the hearing of this matter. When commenting on his history of alcohol and cigarette use at the hearing, the applicant stated that before joining the Army he had been a social drinker and did not smoke. He commenced smoking about 8 months after he joined the army, but quit after his heart attack in 2003. He advised that his alcohol consumption increased in 1988, as his posting was quite stressful, and it peaked in 2000. He admitted that on occasion he minimised his alcohol consumption to army medical personnel, so that he could continue in his career. He also agreed that there were times in his career where he actively tried to reduce his drinking. The applicant admitted that he continued to drink alcohol as at the time of the hearing. The applicant gave evidence about several incidents which he experienced during his service which caused him distress and which were ultimately accepted as the cause of his PTSD and alcohol dependence. This trauma included an incident in 1975 when the applicant was involved in attempting to help a fellow soldier whose right leg was crushed and subsequently had to be amputated; an incident in 1978 when the applicant was involved in a car accident where he was the driver, in which his friend broke his leg and had to be extracted from the car; and an incident in 1984 where he came close to being struck by shrapnel from a hand-grenade when live fire grenade practice was taking place very close by.[4][4] Exhibit A, T-Documents, T9, at p. 45-47. The applicant also gave evidence about the stress he experienced as a result of the micro-management of him by his supervisor, who made his job extremely stressful, causing him to take up smoking again after quitting for around 3 to 6 months and causing a considerable increase in his alcohol consumption. The applicant stated that when he had an angina attack in December 1999, his cardiologist Dr Cameron advised that he should change his lifestyle or he would have a major event within 5 years’ time. In 2003, as the applicant stated, “what had been predicted… four years earlier… became a reality”. The applicant suffered a major heart attack and as a result had to undergo quadruple bypass surgery. The applicant admitted that prior to this he had still been smoking and drinking heavily. After his heart surgery, the applicant completed a 6 week rehabilitation course. He continued to do rehabilitation with Dr Michael Naughton until 2005. During this time the applicant continued to consume large amounts of alcohol. He also continued to struggle with work stress, despite the fact that he had been placed on light duties by Dr Naughton.[5][5] Exhibit C, statement of Mr Dorsett dated 31 August 2015, at p. 1.

Decision

Reasons for decision

In her report of 24 July 2012 Dr Barrett diagnosed chronic fatigue syndrome or fibromyalgia, and prescribed Pregabalin (Lyrica) to the applicant.[40] In a later report of 22 October 2012 she noted that the applicant was managing well on the present dose of Lyrica.[41][40] Ibid at p. 69.[41] Ibid at p. 77.Decision of the respondent dated 14 September 2016 The respondent issued a decision on the applicant’s claim for ‘multiple muscle pain’ and ‘bone pain’ on 14 September 2016.[42] It was found that no medical condition was present to answer his claims, and his disability pension was continued at 100% of the general rate. In the decision the delegate of the respondent outlined that they had contracted a senior medical advisor at DVA and confirmed that, as opined by Dr Bunce and Dr Bryce, the claimed symptoms are secondary to the accepted conditions of PTSD and alcohol abuse. The delegate confirmed that the applicant’s claimed symptoms were covered by his accepted disabilities.[42] Exhibit N, decision of DVA dated 14 September 2016. Dr Sumant Kevat, rheumatologist A report was sought from Dr Kevat after the decision regarding the applicant’s bone and muscle pain was issued. In his report dated 30 December 2016 Dr Kevat listed the applicant’s symptoms as widespread aches and pains throughout the day and during the night, fatigue, impaired concentration and irritability.[43] He stated that the symptoms were moderately severe. [43] Exhibit R, report of Dr Sumant Kevat dated 30 December 2016. Dr Kevat reported that the applicant’s musculoskeletal pains were compatible with fibromyalgia syndrome as a secondary development to some of his other medical conditions.[44] He stated that the fibromyalgia partially restricted the applicant’s capacity to undertake remunerative work, but clarified that it was not the dominant cause of his incapacity, which he attributed to his PTSD and alcohol dependency. Dr Kevat considers it a reasonable hypothesis that the emotional stress associated with the applicant’s past stressful experiences, along with his heart attack, caused the development of fibromyalgia.[44] Ibid at p. 4. When giving evidence at the hearing Dr Kevat confirmed that fibromyalgia was definitely “a recognised diagnosis amongst rheumatologists”. He clarified that the use of the word ‘syndrome’ means a connection of phenomenon. He explained that the symptoms of fibromyalgia (i.e. myalgia and arthralgia) can occur in other conditions, and in this instance could be attributed to the applicant’s PTSD and alcohol dependence. He further explained that both fibromyalgia and PTSD are brain conditions, and as such many features of these conditions overlap. He also spoke about stress often being a very important factor in the cause of fibromyalgia, but stated that stress is not able to be identified in every case. When asked how the applicant’s fibromyalgia would affect his ability to work, Dr Kevat stated that his PTSD and alcohol dependency overlap with his fibromyalgia, so all of those things affect his ability to work. He clarified that fibromyalgia is not the dominant cause of the applicant’s inability to work, but it partially restricts the applicant’s capacity. Dr Kevat confirmed that the applicant’s fibromyalgia is a secondary condition to his PTSD.

Ratio Decidendi

Legal Principle Established

The respondent submits that the applicant also fails to satisfy the criterion outlined in subsection 24(2)(b) of the Act. The respondent contends that the genuine seeking of remunerative work must be proximate to the assessment period. They also argue that the applicant’s incapacity was not the substantial cause of his inability to obtain work. The respondent considers that a variety of other factors prevented the applicant obtaining work, including the existence of his muscle and bone pain, his age, his lack of recent work experience, the death of his friend, the lack of support for his franchise idea, a lack of training and professional experience in his chosen fields, and his preference not to take a job out of Brisbane for family reasons. CONSIDERATIONSpecial rate – “Alone” test It is not in contention, and the Tribunal accepts, that the applicant meets the threshold criteria in order to qualify for the special rate of pension. I have to determine whether section 24(1)(c) of the Act is met. This one criterion in contention is often referred to as the “alone” test and requires that "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..." In Repatriation Commission v Watkins [2015] FCAFC 10, the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21, Repatriation Commission v Hendy [2002] FCA 602; (2002) 76 ALD 47 and Repatriation Commission v Butcher [2007] FCAFC 36; (2007) 94 ALD 364 and reaffirmed the settled principle that: “...if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied.” (at [41]) In this context the reference to “war-caused factors” is taken to be a reference to defence-caused factors. The respondent accepts that the work that the applicant was undertaking was as a soldier, quartermaster and logistics officer. At the time of his voluntary discharge the applicant had a medical assessment and the assessment did not warrant him being discharged medically. The medical assessment enabled him to be transferred to the Army Reserve. The applicant was not employed after his retirement. There is no evidence that the applicant was by reason of an accepted condition prevented from “continuing to undertake remunerative employment” within the meaning of s 24(1)(c) of the Act. In his 2009 pension application, the applicant remarked that he had “retired from military service”; that application does not make reference to any mental health condition. While the applicant has not made a claim for payment of pension at the intermediate rate of pension, in my view he is not entitled to pension at that rate as I am not reasonably satisfied that he meets the requirements of the “alone” test in section 23 of the Act.Ameliorating provisions