French and Repatriation Commission (Veterans' entitlements)
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French and Repatriation Commission (Veterans' entitlements) [2022] AATA 347 (2 March 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2020/8504
Re:Simon French
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:2 March 2022
Place:Hobart
The decision under review is set aside and substituted for a decision that the applicant be entitled to receive his pension at the Intermediate Rate effective from 4 March 2019.
VETERANS’ ENTITLEMENTS – eligibility for increase in pension rate – Intermediate Rate – Special Rate – whether remunerated work capacity is less than eight hours per week in aggregate – post-traumatic stress disorder – alcohol use disorder – combination of work categories – decision set aside and substituted
This matter involves a review of a decision made by the Veterans Review Board ( “VRB”) on 28 October 2020 which in turn affirmed a decision made by a delegate of the respondent on 24 October 2019 to continue the applicant’s disability pension at his current rate being 70% of the General Rate.
BACKGROUND
The applicant is a 54-year-old veteran who served in the Australian Army from 26 May 1987 to 10 December 2006. During this period the applicant was engaged as a field engineer and explosives detection dog handler.
The applicant is married to Mrs French and has two adult children from a former marriage and three younger children with Mrs French.
The applicant has a number of accepted war-caused conditions under the Veterans Entitlements Act 1986 (“the Act”).
The accepted conditions include two psychological disorders namely:
(a)Post-Traumatic Stress Disorder (“PTSD”); and
(b)Alcohol Use Disorder.
The accepted conditions also include two back related conditions namely:
(a)Lumbar Spondylosis; and
(b)Intervertebral Prolapse at L5 – S1.
The accepted conditions also include a sensorineural hearing loss of the right ear.
In addition, the following back related conditions have also been accepted under the Safety Rehabilitation and Compensation Act 1988:
(a)Small Board Based Central Disc Protrusion at L5 – S1; and
(b)L5 – S1 Small Board Based Central Disc Protrusion, L4 – 5 Minimal Disc Bulge.
The applicant’s accepted conditions are not the subject of dispute in this matter.
In addition to his accepted conditions, there was also evidence before the Tribunal of the applicant suffering from dyslexia, which the Tribunal accepts.
On 4 March 2019, the applicant applied to have the rate of his disability pension increased. In his application, the applicant claimed that he is entitled to be paid at the Special Rate on the basis that he is totally and permanently incapacitated due to his remunerated work capacity being less than eight hours per week in…
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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This matter concerned a veteran's application for an increase in his disability pension rate, specifically seeking the Special Rate. The applicant, who served in the Australian Army and has accepted war-caused conditions including Post-Traumatic Stress Disorder, Alcohol Use Disorder, and back-related issues, claimed his remunerative work capacity was less than eight hours per week in aggregate. Both the Veterans Review Board and the original delegate had rejected this claim, affirming his pension at 70% of the General Rate. The Administrative Appeals Tribunal reviewed these decisions.
The primary legal issue before the Tribunal was whether the applicant's incapacity from his accepted war-caused conditions alone rendered him incapable of undertaking remunerative work for more than eight hours per week in aggregate, as required by section 23 of the *Veterans Entitlements Act 1986* for an increase to the Intermediate Rate. This involved assessing the combined impact of his psychological and physical conditions on his ability to engage in employment.
The Tribunal considered expert evidence from a psychiatrist and a musculoskeletal medicine physician, as well as testimony from the applicant and his wife. The psychiatrist opined that the applicant's PTSD, characterised by anger, irritability, and social withdrawal, made employment involving significant interpersonal contact extremely challenging, limiting his capacity to solitary, self-paced work. While acknowledging the impact of his back conditions on strenuous activity, the psychiatrist noted the applicant had learned to tolerate the long-standing pain. The Tribunal accepted that the applicant's accepted conditions, when considered together, did render him incapable of undertaking remunerative work for more than eight hours per week.
Consequently, the Tribunal set aside the previous decisions and substituted a new decision finding the applicant entitled to receive his pension at the Intermediate Rate, effective from 4 March 2019.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This matter involves a review of a decision made by the Veterans Review Board ( “VRB”) on 28 October 2020 which in turn affirmed a decision made by a delegate of the respondent on 24 October 2019 to continue the applicant’s disability pension at his current rate being 70% of the General Rate.BACKGROUND The applicant is a 54-year-old veteran who served in the Australian Army from 26 May 1987 to 10 December 2006. During this period the applicant was engaged as a field engineer and explosives detection dog handler. The applicant is married to Mrs French and has two adult children from a former marriage and three younger children with Mrs French. The applicant has a number of accepted war-caused conditions under the Veterans Entitlements Act 1986 (“the Act”). The accepted conditions include two psychological disorders namely:(a)Post-Traumatic Stress Disorder (“PTSD”); and(b)Alcohol Use Disorder. The accepted conditions also include two back related conditions namely:(a)Lumbar Spondylosis; and(b)Intervertebral Prolapse at L5 – S1. The accepted conditions also include a sensorineural hearing loss of the right ear. In addition, the following back related conditions have also been accepted under the Safety Rehabilitation and Compensation Act 1988:(a)Small Board Based Central Disc Protrusion at L5 – S1; and(b)L5 – S1 Small Board Based Central Disc Protrusion, L4 – 5 Minimal Disc Bulge. The applicant’s accepted conditions are not the subject of dispute in this matter. In addition to his accepted conditions, there was also evidence before the Tribunal of the applicant suffering from dyslexia, which the Tribunal accepts. On 4 March 2019, the applicant applied to have the rate of his disability pension increased. In his application, the applicant claimed that he is entitled to be paid at the Special Rate on the basis that he is totally and permanently incapacitated due to his remunerated work capacity being less than eight hours per week in aggregate. Both the VRB decision made on 28 October 2020 and the original delegate’s decision made on 24 October 2019 rejected the applicant’s claim for an increase to his disability pension and determined that his pension should continue at his present rate being 70% of the General Rate. RELEVANT LEGISLATIVE PROVISIONS The legislative provisions relevant to the issues before the Tribunal are set out in the Act. More specifically they include sections 23, 24 and 28 of the Act. Section 23 provides: (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’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and(c) the veteran is, by reason of incapacity from 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 from that incapacity; and(d) section 24 or 25 does not apply to the veteran.(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.(3) For the purpose of paragraph (1)(c):(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:(i) if 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;(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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.(3A) This section applies to a veteran if:(a) 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(b) the veteran had turned 65 before the claim or application was made; and(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and(d) the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and(h) section 24 or 25 does not apply to the veteran.(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:(a) 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(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or(c) the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both.(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.(5) Subject to subsection (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:General Rate – (14 x Reduced daily pension amount worked out under section 115D)(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
Evidence
Evidence Before The Court
The Tribunal is satisfied that the relevant assessment period for determining the applicant’s eligibility for a rate increase commenced on the date of the applicant’s application for an increase, namely, 4 March 2019, and concludes on the date the application is finally determined.[1][1] See Smith v Repatriation Commission [2014] FCAFC 53.CONTENTIONS, EVIDENCE AND CONSIDERATION It was put on behalf of the applicant that, having regard to the whole of the evidence, the Tribunal should be satisfied that the applicant is not capable of undertaking remunerative work in aggregate of more than eight hours per week due to his accepted conditions alone. The respondent contends that while the applicant’s capacity for remunerative work has been adversely impacted by his war-caused conditions including, in particular, his psychological conditions and to a lesser extent his back conditions, the applicant nonetheless maintains an ongoing capacity for remunerative work of more than eight hours per week. The Tribunal heard from two expert witnesses, Dr Ratcliff who is a consultant psychiatrist and Dr Ernst who is musculoskeletal medicine physician. The Tribunal also heard from the applicant and Mrs French. Dr Ratcliff examined the applicant on 22 June 2021 and had also examined the applicant on six prior occasions. Dr Ratcliff’s assessment was that the applicant continues to suffer from the accepted psychological conditions of PTSD and Alcohol Use Disorder. Dr Ratcliff noted that features of the applicant's psychological conditions include depression, insomnia, irritability and anger and in his view, there does not appear to have been any notable improvement. In Dr Ratcliff’s opinion the most limiting aspects of the applicant's conditions are his anger and irritability and what he described as being a "very marked social withdrawal", all of which are features of his PTSD. Dr Ratcliff noted that the applicant had described becoming increasingly uncomfortable being exposed to guests and avoided interaction with them. Dr Ratcliff described the applicant as having an issue with his sleep patterns which he considered to also be a feature of the applicant’s PTSD condition and consistent with the applicant’s Alcohol Use Disorder. In addition, Dr Ratcliff’s evidence was that the applicant’s accepted back related conditions limited, to some degree, the applicant’s capacity to engage in more strenuous physical activity although the back pain had been very long-standing and the applicant had learned to tolerate it. Dr Ratcliff stated that, in his view, the features of the applicant’s PTSD condition including his anger, irritability and social withdrawal had the effect of making employment involving contact with fellow workers, guests or customers extremely challenging. His view was that the applicant's current work capacity would generally be limited to more flexible work activities that can be undertaken in a solitary manner and carried out at the applicant’s own pace.
Decision
Reasons for decision
As stated above, the Tribunal does, however, accept that the applicant satisfies the criteria to be paid his pension at the Intermediate Rate in accordance with section 23 of the Act from 4 March 2019.DECISION The decision under review is set aside and substituted for a decision that the applicant be entitled to receive his pension at the Intermediate Rate effective from 4 March 2019.
