Gamble and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 952

Gamble and Repatriation Commission (Veterans’ entitlements) [2016] AATA 952 (29 November 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/5856

Re

Neil Gamble

APPLICANT

And

Repatriation Commission

RESPONDENT

File Number(s)

2014/5898

Re

Neil Gamble

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms J C Kelly, Senior Member

Date 29 November 2016

Place
Sydney

The application with file number 2014/5856, regarding a claim for medical treatment and pension for incapacity from hypertension, is dismissed pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975.
The decision under review in the application with file number 2014/5898, regarding the assessment of the rate at which the pension is paid, is affirmed.
...................................[sgd].....................................
Ms J C Kelly, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – applicant did not pursue an application at the hearing – dismissed pursuant to section 42A(1)
VETERANS’ ENTITLEMENTS – assessment of rate of pension – special rate – capacity to undertake remunerative work – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(1), 43(1)
Veterans’ Entitlements Act 1986 (Cth) ss 19(9), 24, 28
CASES
Collins v Repatriation Commission (1994) 33 ALD 557
Philip and Repatriation Commission [2006] AATA 427
Redden and Repatriation Commission [2015] AATA 273
Repatriation Commission v Richmond (2014) 226 FCR 21
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016
Statement of Principles concerning diabetes mellitus No. 90 of 2011
Statement of Principles concerning incisional hernia (Balance of Probabilities) No. 74 of 2016
REASONS FOR DECISION
Ms J C Kelly, Senior Member
29 November 2016
INTRODUCTION

In the application with file number 2014/5898, the applicant, Mr Gamble, is seeking to be paid the special rate of pension under section 24 of the Veterans’ Entitlements Act1986 (the Act) rather than 100% of the general rate of pension. He worked as an air-framer in the Royal Australian Air Force (the RAAF).
In the application with file number 2014/5856, the applicant is claiming medical treatment and pension for incapacity from hypertension.
The decision under review is the decision of the Repatriation Commission dated 23 April 2014 that assessed disability pension at 100% of the general rate and refused the claim for hypertension, as affirmed by the Veterans’ Review Board on 22 October 2014.
The applicant’s counsel said at the hearing that the applicant was not pursuing the hypertension claim and would file a notice of discontinuance on the day of the hearing. The issue was not further addressed in evidence or submissions at the hearing. No document has been filed. Absent a notice in writing discontinuing or withdrawing the hypertension claim, the Tribunal accepts the statement of the applicant’s counsel at the hearing as giving consent to the Tribunal to dismiss the application pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975. The applicant did not press a claim for extreme disablement benefit.
The applicant has to satisfy the criteria in section 24(1) of the Act.
The applicant was born on 12 February 1950. He was 64 years of…

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: [2016] AATA 952
Decision Date: 29 November 2016

CaseChat Overview and Summary

This matter concerned an application by Mr. Gamble before the Administrative Appeals Tribunal, presided over by Senior Member Ms J C Kelly. The dispute centred on Mr. Gamble's claim for a special rate of pension under the *Veterans' Entitlements Act 1986* (Cth), specifically relating to his capacity to undertake remunerative work due to war-caused injury or disease.

The Tribunal was required to determine whether Mr. Gamble met the criteria for a special rate pension, which necessitates being totally and permanently incapacitated. This involved assessing whether his incapacity from war-caused injury or disease alone rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, and whether he was prevented from continuing remunerative work he was undertaking due to that incapacity, thereby suffering a loss of earnings. The Tribunal also had to consider the specific matters to which it must have regard when assessing a veteran's capacity to undertake remunerative work, as outlined in section 28 of the Act.

The Tribunal's reasoning was that it was not satisfied that Mr. Gamble was totally and permanently incapacitated to the extent required by section 24(1)(b) of the Act. This conclusion was reached after considering oral evidence from the applicant, reports from his general practitioners, a psychiatrist, and an occupational physician, as well as documentation regarding his redundancy package. The Tribunal found that the evidence did not establish that his incapacity alone prevented him from undertaking remunerative work for more than 8 hours per week, making it unnecessary to consider section 24(1)(c).

Consequently, the application concerning the claim for medical treatment and pension for hypertension was dismissed pursuant to section 42A(1) of the *Administrative Appeals Tribunal Act 1975*. The decision under review regarding the assessment of the rate at which Mr. Gamble's pension was paid was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant provisions of the Act are:Section 24 Special rate of pension(1): … (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;…Section 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).THE EVIDENCE BEFORE THE TRIBUNAL In addition to the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), the following evidence was before the Tribunal:·Oral evidence from the applicant;·Oral evidence by telephone and a report dated 22 June 2016 from Dr Thompson, the applicant’s general practitioner from about August 2014, located at Berry;·Report dated 17 June 2016 of Dr Chan, the applicant’s general practitioner from 1993 until July 2014, located at Guildford;·A letter from Alcoa, confirming that the applicant accepted a redundancy package on 31 August 2014;·A short letter dated 5 June 2015 from Professor Henry Pleass, transplant, hepatobiliary and pancreatic surgeon, to the applicant’s legal representative; ·A report dated 6 November 2015 from Dr Roberts, psychiatrist; and·Oral evidence and a report dated 2 October 2015 from Dr Chase, occupational physician.THE APPLICANT’S ACCEPTED CONDITIONS

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the applicant is totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The applicant does not satisfy section 24(1)(b) of the Act. It is therefore unnecessary to consider section 24(1)(c) of the Act.DECISION The application with file number 2014/5856, regarding a claim for medical treatment and pension for incapacity from hypertension, is dismissed pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975. The decision under review in the application with file number 2014/5898, regarding the assessment of the rate at which the pension is paid, is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5856
Re	Neil Gamble
APPLICANT
And	Repatriation Commission
RESPONDENT

File Number(s)	2014/5898
Re	Neil Gamble
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms J C Kelly, Senior Member
Date	29 November 2016
Place	Sydney