Ducat and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1061

Ducat and Repatriation Commission (Veterans' entitlements) [2017] AATA 1061 (6 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/0518
Re:Peter Ducat
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:6 July 2017
Place:Sydney

The decision under review is set aside and, in substitution, disability pension is payable to the Applicant as follows:
·90% of the General Rate with effect from 25 November 2010 up to 14 May 2013; and
·the Intermediate Rate with effect from 15 May 2013.

...............................[sgd].........................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS AFFAIRS — disability pension — application for increase in pension – intermediate rate of pension – whether veteran’s defence-caused incapacity renders the Applicant incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 23, 28
CASES
Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
REASONS FOR DECISION
Ms N Isenberg, Senior Member

The Applicant, Peter Ducat, served for 20 years in the Royal Australian Air Force as an engine fitter. He has had a number of medical conditions accepted as related to his service:
·lumbar spondylosis;
·labral tear of the right shoulder;
·cervical spondylosis; and
·tinnitus.
Pension for these conditions was initially assessed pension at 50% of general rate, but, on review by the Veterans’ Review Board, was increased to 90% with effect from 25 November 2010. The Applicant sought an increase in his pension in respect of those conditions; in particular, he sought the Special Rate of pension. He now seeks review by this Tribunal. Although he had initially sought the Special Rate of pension, that application was withdrawn and his application for review sought only the Intermediate Rate.
Since the decision under review the applicant has had two further conditions accepted as service-related: osteoarthritis affecting both hips, and depressive disorder. Acceptance of those conditions resulted in an increase in his pension to 100% of the General Rate with effect from 20 May 2014.
LEGISLATION
Criteria for the Intermediate Rate
The criteria for the Intermediate Rate are set out in s 23 of the Veterans’ Entitlement Act 1986 (Cth) (VEA). That section provides, in part:
Intermediate 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 defence-caused injury or defence-caused disease, or both, is determined under section 21A to be at least…

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: [2017] AATA 1061
Decision Date: 6 July 2017

CaseChat Overview and Summary

This matter concerned an application by the Applicant, a veteran, for an increase in his disability pension to the intermediate rate. The dispute centred on whether the Applicant's defence-caused incapacity rendered him incapable of undertaking remunerative work for more than 20 hours per week. The Administrative Appeals Tribunal (AAT) was required to determine this question.

The legal issues before the Tribunal were whether the Applicant's defence-caused incapacity, of itself, rendered him incapable of undertaking remunerative work for more than 20 hours per week, or 50% of what is ordinarily worked in a particular kind of work. This required an examination of the Applicant's vocational, trade, and professional skills, qualifications, and experience, and the degree to which his physical or mental impairment reduced his capacity to undertake remunerative work. The Tribunal was also required to consider the specific matters outlined in section 28 of the *Veterans' Entitlements Act 1986* (VEA), which exclusively govern the assessment of a veteran's capacity to undertake remunerative work.

The Tribunal reasoned that the assessment of the Applicant's capacity to undertake remunerative work must focus solely on the impact of his service-caused disabilities. It noted that the Applicant had a history of employment in roles related to his RAAF training as an Engine Fitter, including as a Disposal Assessor and a Publication Manager, which involved both office-based and physically demanding tasks. The Tribunal considered the Applicant's evidence regarding his difficulties with sitting for extended periods due to neck and back problems, and his limited typing proficiency. Crucially, the Tribunal found that while the Applicant had experienced syncopal episodes which he stated impeded his ability to work, these episodes had ceased by May 2013. Therefore, the Tribunal determined that prior to this date, a non-accepted disability had impacted his work capacity.

The Tribunal set aside the decision under review and substituted a new decision. Disability pension was ordered to be payable to the Applicant at 90% of the General Rate from 25 November 2010 up to 14 May 2013, and thereafter at the Intermediate Rate from 15 May 2013.

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

Section 28 of the VEA , which sets out the matters to which regard must be had in considering whether s 23(1)(b) applies, states:Capacity to undertake remunerative work In determining, for the purposes of paragraph 23(1)(b) ... whether a veteran who is incapacitated from defence-caused injury or defence-caused disease, or both, is incapable of undertaking remunerative work, ... the [decision-maker] 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). APPLICANT’S EVIDENCE The Applicant gave evidence that he served in the Royal Australian Air Force (RAAF), where he trained as an Engine Fitter, from 4 December 1979 to 10 December 1999, when he was medically discharged after he required spinal surgery. He said he spent 18 months “in a chair” because he was unable to walk. He was granted the Disability Support Pension (DSP) in 2003. On 20 October 2003 he commenced work for a logistics company, which was contracted to the RAAF. He worked as a Disposal Assessor which involved going to shipping containers and retrieving boxes of parts from F18 aircraft that were to be disposed of, and then recording the parts in a database, using a defence-specific program on which he was trained. Approximately 60% of the time, he said, was in the shipping container shed, and the rest was in an office. He ceased working in this position on 19 April 2004. On 1 November 2004 he started working in another position for the logistics company, this time as a Publication Manager. That role involved updating about 172 different manuals with amendments; it was a technical job that relied on his knowledge of aircraft fitting and his skills in aircraft mechanical engineering. The job was office-based but involved “a lot of physical moving around” on foot to different parts of the building to retrieve manuals and boxes of paper containing the amendments – about 50% of the time. Because he had difficulty sitting at a desk for more than about 20 minutes due to his neck and back problems, he used an orthopaedic chair. He was not a proficient typist – he used two fingers – and he has not improved. He does not correspond by email, nor use social media, but can upload photographs. He ceased working in this position on 16 December 2005, according to his tendered employment record, although the applicant claimed it was on 28 February 2006. In about 2006/7 he worked for a riding school, mending fences and undertaking other maintenance/repair and demolition work for about 2 hours a week. He was experiencing pain in his neck, shoulders and lower back. The work ended when all the demolition work was completed and the manager’s wife engaged others for any ongoing work.

Decision

Reasons for decision

Perhaps the most relevant consideration in this regard is the effect of the Applicant’s syncopal episodes. The Applicant told Dr Mellick, Dr Rosenthal and Dr Chase that it was his syncopal episodes that “stopped him working”. On the applicant’s evidence though, he has not experienced such an episode since 2012 and he has been free of the condition since May 2013. Up until that time this condition, which despite extensive investigation remained undiagnosed and unresolved, was, on the Applicant’s evidence, an impediment to his ability to work. I therefore find that, up until that time, that non accepted disability had an impact on his work ability. I do not have a clear picture of the date of the last episode or the surgery, so have adopted 15 May 2013, being the middle of the month which he has variously described as the date of his last episode and the date of the surgery. DECISION The decision under review is set aside and, in substitution, disability pension is payable to the Applicant as follows:·90% of the General Rate with effect from 25 November 2010 up to 14 May 2013; and·the Intermediate Rate with effect from 15 May 2013.

Ratio Decidendi

Legal Principle Established

He was referred to the history he gave to Dr Chase. The Applicant reportedly told Dr Chase he ceased work in 2013 but the Applicant said that his medication made him vague about dates. He said that, at the appointment in July 2016, Dr Chase did not examine his hands, so he does not know how the doctor could make observations about his hands showing signs of being engaged in manual work. CONSIDERATION The VEA requires that the material before the Tribunal must satisfy a number of tests; if any one of the criteria is not met, the applicant will not be eligible for payment of pension at the Intermediate rate. There is no discretion in this regard. Firstly, the Applicant's degree of incapacity from defence-caused conditions must be at least 70% of the General Rate: s 23(1)(a) of the VEA. There was no dispute that the Applicant met this test. Next, for a person aged under 65 as in this case, s 23(1)(b) of the VEA requires that an Applicant's incapacity from service-caused conditions must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work. This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work. Section 28 of the VEA provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question. Then, the Tribunal must determine if, because of his accepted disabilities alone, the Applicant is prevented from continuing to undertake the remunerative work for more than 50% of the time ordinarily worked by persons engaged in work of the kind he had been undertaking on a full-time basis, or to work for more than 20 hours per weekWhat are the Applicant’s trade and professional skills, qualifications and experience? Section 23(1)(b) of the VEA requires an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out. The test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219 (Chambers), where the Court said at 235:... A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.