Graham and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 376

Graham and Repatriation Commission (Veterans’ entitlements) [2016] AATA 376 (3 June 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/1617

Re

Kenneth Graham

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 3 June 2016

Place Sydney
The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Senior Member J F Toohey
CATCHWORDS
VETERANS ENTITLEMENT – special rate – intermediate rate – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran incapable of undertaking remunerative work for 20 or more hours per week – whether veteran ceased to engage in remunerative work for reasons other than his accepted conditions – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act (1986) ss 19, 23, 24, 28, 120
CASES
Chambers v Repatriation Commission (1995) 55 FCR 9
SECONDARY MATERIALS
Second Reading Speech to Veterans’ Entitlements Bill 1985 Hansard, House of Representatives, 16 October 1985 at 2178
REASONS FOR DECISION
Senior Member J F Toohey
3 June 2016
BACKGROUND

Mr Kenneth Graham the served in the Australian Army from 27 March 1968 to 28 February 1969. During a tour of duty in South Vietnam, he sustained a spinal injury when he fell into a deep hole. He has suffered back pain since. He suffers from lumbar spondylosis with intervertebral hollow disc degeneration, osteoarthritis right first metatarso-phalangeal joint, sensorineural hearing loss, tinnitus, hammer toe, and corns and callosities (right), all of which the Repatriation Commission (the Commission) has accepted are related to his service.
Mr Graham receives a disability pension at 80 per cent of the General rate for his service-related disabilities. He seeks review of a decision made by the Veterans Review Board on 23 March 2015 that he does not qualify for the Special or Intermediate rate of pension.
LEGISLATION
The legislation concerning the Special and Intermediate rates of pension is in s 24 and s 23 respectively of the Veterans’ Entitlements Act (1986) (the Act). Different provisions apply according to a veteran’s age at the time of claiming the pension.
Mr Graham was 69 years old when he made his claim on 11 August 2014.
A veteran who turns 65 after making a claim for Special or Intermediate rate must satisfy the provisions of subsection 24(2A) or subsection 23(3A) respectively. These provisions impose a higher test of qualification than for a veteran who has not yet turned 65. This reflects the intention of Parliament, outlined in the Second Reading Speech for the Veterans’ Entitlements Bill 1985, that the special rate of disability pension is payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment :
[The Special rate pension] was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the [Special rate pension] would…

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 376
Decision Date: 3 June 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Graham against a decision of the Repatriation Commission regarding his entitlement to a special or intermediate rate pension under the *Veterans’ Entitlements Act 1986* (Cth). The core of the dispute revolved around whether Mr Graham was incapable of undertaking remunerative work for eight or more hours per week, or for 20 or more hours per week, due to his accepted war-caused conditions.

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr Graham's accepted disabilities rendered him incapable of undertaking remunerative work for eight or more hours per week, or for 20 or more hours per week, as required for the special or intermediate pension rates. Secondly, the Tribunal had to consider whether Mr Graham had ceased to engage in remunerative work for reasons other than his accepted conditions.

In reaching its decision, the Tribunal considered various medical reports and Mr Graham's own evidence. It found that the opinion of Dr Paul, stating Mr Graham could perform "Nil" hours of work per week, was given insufficient weight due to its limited nature and lack of clear basis. The Tribunal also noted inconsistencies in the opinions of other doctors, particularly Dr Rosenthal and Associate Professor Gullotta, which were based on assumptions about Mr Graham's ability to sit that were contradicted by his evidence. The opinions of Dr Coughlan and Dr Hunter were found to focus on specific duties (loading and unloading) and did not definitively conclude that Mr Graham was incapable of working eight hours or more in suitable duties. Crucially, the Tribunal accepted Mr Graham's evidence that he could drive for extended periods, and in conjunction with Dr Chase's opinion that driving is comparable to sitting, it was not satisfied that Mr Graham was unable to undertake remunerative work for eight or more hours per week, or for 20 or more hours per week, by reason of his accepted conditions. Furthermore, the Tribunal found that the principal reason Mr Graham ceased employment was due to his landlady selling her house, and that he likely would have continued working had this not occurred.

Consequently, the Tribunal was not satisfied that Mr Graham's accepted disabilities alone rendered him incapable of undertaking remunerative work to the extent necessary for the special or intermediate pension rates. Moreover, it found that he ceased remunerative work for reasons unrelated to his accepted conditions. Accordingly, the decision under review was affirmed.

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

Full text does not contain this section.

Decision

Reasons for decision

I am satisfied, on the basis of Mr Graham’s oral and written evidence, that the principal reason he ceased employment when he did was that his landlady was selling her house and moving. It was clear from his evidence that the long-standing arrangement suited him well. It is also clear that, had she not moved, he would have probably kept working.CONCLUSION For these reasons, I am not satisfied that Mr Graham’s accepted disabilities alone rendered him incapable of undertaking remunerative work to the extent necessary to qualify for either the Special or Intermediate rate pension. In any event, I find that he ceased to engage in remunerative work for reasons other than his incapacity arising from his accepted conditions. For these reasons, I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Gerry Paul, general practitioner, completed a Work Ability Report for Mr Graham on 8 September 2014. In response to questions as to how or Mr Graham’s disability reduced his ability to work and what, if any, type of work he would be able to perform, Dr Paul noted “unable” and “not able” respectively. He indicated that Mr Graham could perform “Nil” hours work per week. Given the very limited nature of the information in the report and no clear indication of the basis for Dr Paul’s opinion, I do not give this document any weight.Consideration The Commission submits, and I accept, that a close reading of the reports and evidence of the other doctors shows that they are not at odds with Dr Chase to the extent suggested for Mr Graham. The opinion expressed in Dr Rosenthal’s written report was based, at least in part, on his understanding that Mr Graham could not sit for more than 15 to 20 minutes. His understanding was based on Associate Professor Gullotta’s notes which are at odds with Mr Graham’s evidence to the Tribunal. The opinions expressed by Dr Rosenthal and in Associate Professor Gullotta’s notes are undermined by the inconsistency. Dr Coughlan’s opinion that Mr Graham could not work eight hours a week was on the basis of his significant loading and unloading duties. He does not suggest that Mr Graham is incapable of working eight hours or more per week in suitable duties. Similarly, Dr Hunter refers in particular to Mr Graham’s difficulties with loading and unloading. As already noted, it is not clear how many hours per week he considers Mr Graham could work and he does not comment on his capacity for other suitable duties. Give Mr Graham’s evidence that he can drive his car for up to an hour or an hour and a half without a break, and accepting Dr Chase’s opinion that there is little, if any, difference between sitting and driving a car and sitting and driving a bus or a taxi. I am therefore not satisfied that Mr Graham he is unable, by reason of his back and foot conditions of undertaking remunerative work for periods aggregating more than eight hours per week, or for 20 or more hours per week. Section 28 provides:In 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).

Division	VETERANS' APPEALS DIVISION
File Number	2015/1617
Re	Kenneth Graham
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	3 June 2016
Place	Sydney