Gamble and Repatriation Commission (Veterans’ entitlements) - [2006] AATA 427

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: [2006] AATA 427
Decision Date: 17 May 2006

CaseChat Overview and Summary

The case of Gamble and Repatriation Commission (Veterans’ entitlements) involved an application by Gamble, a veteran, for a review of the assessment of the rate at which his pension should be paid. The application was heard by the Administrative Appeals Tribunal (AAT). The dispute centred on whether Gamble qualified for a special rate of pension under the relevant provisions of the Act, specifically section 24(1)(b) and (c). These sections require that the veteran be totally and permanently incapacitated from undertaking remunerative work for periods exceeding eight hours per week due to war-caused injury or disease.

The central legal issues before the court were whether Gamble’s incapacity rendered him incapable of undertaking remunerative work for more than eight hours per week and whether he was suffering a loss of salary or wages due to his incapacity. The court had to determine these issues based on the vocational, trade, and professional skills of Gamble, the types of work he could reasonably undertake, and the extent to which his physical or mental impairment reduced his capacity to perform such work.

The AAT reviewed the evidence, including oral testimonies, medical reports, and other relevant documents. The Tribunal found that Gamble’s incapacity did not meet the criteria for a total and permanent incapacity as defined by the Act. Specifically, the Tribunal concluded that Gamble’s incapacity did not prevent him from undertaking remunerative work for more than eight hours per week. As a result, the Tribunal was not satisfied that Gamble met the conditions for a special rate of pension under section 24(1)(b) of the Act. Consequently, the application for the review of the pension rate assessment was dismissed, and the original decision was affirmed.

Given the findings, the AAT dismissed the application under section 42A(1) of the Administrative Appeals Tribunal Act 1975. The court affirmed the original decision regarding the assessment of the rate at which the pension was to be paid.

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