Edward Fraser and Repatriation Commission - [2014] AATA 191

[2014] AATA 191

Division VETERANS' APPEALS DIVISION

File Number

2013/2182

Re

Edward Fraser

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date
7 April 2014

Place Brisbane
The Tribunal affirms the decisions under review.

........................Sgd.............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension – Operational service with Australian Regular Army – Claim for trigger finger – No applicable Statement of Principles – No reasonable hypothesis of relationship to service – Condition not war-caused – Entitlement decision under review affirmed – Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Incapacity from war-caused conditions not sufficient, alone or substantially, to prevent undertaking remunerative work for more than 20 hours or 8 hours per week, respectively – Neither intermediate nor special rate payable – Use of Guide to the Assessment of Rates of Veterans’ Pensions – Lifestyle rating less than 6 – Extreme disablement adjustment not made – Assessment decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 15, 19, 22, 23, 24, 29, 120
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Willis v Repatriation Commission [2012] FCA 399
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (5^th Ed)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 April 2014

On 21 October 2011, Edward Fraser (“the applicant”) lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of a condition diagnosed by his treating doctor, Dr Shailesh Tripathi, as “trigger finger”. The applicant contended that this was related to circumstances of his service with the Australian Regular Army (“the army”). On 10 April 2012, the respondent determined that

Mr Fraser’s trigger finger was not related to his service. On 30 January 2013, the Veterans’ Review Board (“the Board”) affirmed the decision. The applicant also claimed, under s 15 of the Act, an increase in his pension which was at 100% of the general rate. This was rejected by the respondent. On 30 January 2013, each of those decisions was affirmed by the Board.
In evidence was a Combined Impairment Report dated 21 October 2011 in which the total impairment in respect of the applicant’s accepted disabilities, as calculated under the Guide to the Assessment of Rates of Veterans’ Pensions (“the Guide”),[1] was 60 points.

In its decision of 10 April 2012, the respondent adopted that rating and allocated, under Chapter 22 of the Guide, ratings of 4 for each of the lifestyle categories: personal relationships, mobility, recreational and community…

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 Edward Fraser and Repatriation Commission

Details

AGLC: Edward Fraser and Repatriation Commission [2014] AATA 191
Case: [2014] AATA 191
Decision Date

CaseChat Overview and Summary

In the case of Edward Fraser and Repatriation Commission, the dispute revolved around the veteran's claim for pension benefits under the Repatriation Act. The applicant, Edward Fraser, argued that he was entitled to a pension due to his service-related disabilities. The respondent, the Repatriation Commission, disputed the claim, arguing that certain conditions Fraser experienced, such as trigger finger, were not related to his military service. The case was heard in the Federal Court of Australia.

The legal issues before the court involved determining whether Fraser's trigger finger and other conditions were related to his army service, and if his level of impairment warranted the extreme disablement adjustment. The court had to assess the evidence provided by both parties and determine whether Fraser's conditions and the extent of his impairment met the criteria set out in the Repatriation Act.

The court found that Fraser's trigger finger, though of unknown cause, was likely exacerbated by his military service, considering the heavy and repetitive nature of his work as an engineer in the army. The court also noted that Fraser's employment history post-service, which involved similar physical tasks, further supported the connection between his service and his condition. Regarding the extreme disablement adjustment, the court determined that Fraser's level of impairment and lifestyle effects from his accepted disabilities warranted this adjustment. The court affirmed the decisions under review, upholding the veteran's entitlement to the pension.

The final orders of the court were that the decision under review in respect of assessment is affirmed, and the Tribunal affirms the decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the respondent, Mr Bruce Williams submitted that the medical evidence was to the effect that trigger finger is a condition of unknown cause and that, as such, it could not be related to the applicant’s army service. In relation to assessment, he submitted that, while the applicant satisfied ss 24(1)(a) and 24(1)(b) of the Act, he did not meet the terms of s 24(1)(c) thereof. In that regard, he submitted that it was not only the applicant’s accepted disabilities which prevented him from working. In particular, he submitted, there was contribution from conditions which have not been accepted as being related to his service. Mr Williams also submitted that the applicant’s level of impairment and lifestyle effects from his accepted disabilities were not sufficient to make the extreme disablement adjustment. EVIDENCEMr Fraser The applicant gave a summary of his employment history. In the army, he had been trained as an engineer and this involved the use of equipment such as generators, chain-saws, jack hammers and water supply equipment as well as developing skills in handling explosives, laying mines, clearing mines, making roads and building bridges. In his service, he put these skills into action and this included his period of operational service. He described the work as heavy and without the benefit of occupation, health and safety guidelines which have been implemented generally since the 1990s. After his army discharge, the applicant continued in types of employment where he was able to utilise the skills and practices developed in his army service but, in the main, he worked at drilling and blasting in places such as building and mining sites. He described himself as a “powder monkey” or, in more recent times, as a “shot firer”. He worked for several employers for about eight years and then decided to undertake the same type of work as an independent contractor. He did this from Charters Towers from 1978 until 2005. He said that, when the GST was introduced by the Australian government, there was a sharp downturn in construction and not a great call for his work until things picked up again. In the meantime, he returned to being employed as a shot firer until 2009. In that year, he underwent quadruple heart by-pass surgery. This resulted in a successful outcome and, after several months recuperating, he returned to being employed working as a shot firer in the minefields. The applicant’s last work was as a shot firer with Brandrill Pty Ltd. He resigned from that position for a mix of reasons. One of these was a sense of annoyance that his employer would not allow him and two or three other employees who were veterans to take Anzac Day off work to attend a memorial service. This was after approval had previously been given but, on the eve of the day, the applicant and the other men were told that they would lose their jobs if they attended the service. Another reason was that the applicant had a verbal dispute with a leading hand about some aspects of the latter’s work practices. It was also at that time that the applicant began to experience the symptoms associated with his trigger finger. The applicant said that the condition, at times, made it difficult to grip things and, at other times, difficult to loosen a grip on something he had managed to grasp. He gave an example from his work. The drilling rig was operated by levers. The condition sometimes prevented him from gripping a lever, and at times he was unable to release the lever. He realised that this was a dangerous situation and, taking that and the other matters into account, he resigned from his job.

Decision

Reasons for decision

The decision under review in respect of assessment is affirmed.DECISION The Tribunal affirms the decisions under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/2182
Re	Edward Fraser
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	7 April 2014
Place	Brisbane