Hancock and Repatriation Commission - [2000] AATA 998

DECISION AND REASONS FOR DECISION [2000] AATA 998

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/903

VETERANS' APPEALS DIVISION       )
           Re      DARRYL HANCOCK
  Applicant
           And    REPATRIATION COMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

Date14 November 2000
PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Respondent to calculate the Applicant's rate of Disability Pension on the basis that he qualifies for payment at the special rate with a date of effect of 28 May 1996.

..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – assessment – skills, qualifications and experience of veteran – capacity to undertake remunerative work – contribution of accepted conditions

Veterans' Entitlements Act 1986 ss 23, 24, 28, 175(3)

Birtles v Repatriation Commission (1991) 105 ALR 359
Chambers v Repatriation Commission (1995) 129 ALR 219

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

APPLICATION

Mr Hancock ("the Applicant") has been in receipt of a Disability Pension under the Veterans' Entitlements Act 1986 ("the Act") for many years in respect of accepted conditions of solar keratoses and right and left inguinal hernias. On 28 August 1996 the Applicant lodged a claim for an increase in Disability Pension (T4) on the basis of a worsening of his war-caused conditions. He said he could do no heavy lifting. His lifestyle had been reduced. He had lost one testicle because of hernia occurring in Darwin in 1991. This was supplemented by a claim lodged on 2 September 1996 (T8) in respect of "blood pressure, chest problems, ulcers and reflux, post-traumatic stress disorder (PTSD), hearing loss and tinnitus, bowel problems/diarrhoea and liver problems".
On 17 February 1997 the Repatriation Commission ("the Respondent") decided (T13) to accept as war-caused the conditions of gastro-oesophageal reflux and bilateral sensori-neural hearing loss with tinnitus. It decided not to accept as war-caused conditions of adjustment disorder with depression and alcohol dependence, irritable bowel syndrome and chronic airflow limitation. The rate was set at 40 per cent of the general rate effective from 28 May 1996.
On 26 February 1997 Mr Hancock lodged with the Veterans Review Board ("VRB") an application for review of the decision (T15). He challenged in particular the non-acceptance of the conditions of PTSD, "chest problems" and "blood pressure". On 25 February 1999 the VRB affirmed the Respondent's decision (T19) as regards the non-accepted conditions. However it increased the rate of pension to 50 per cent of general rate. This decision was notified to the Applicant in a letter dated 19 May 1999 (T20).
On 16 June 1999 the Applicant lodged with the Tribunal an application for review (T1).
At the commencement of the hearing the tribunal was informed that the Respondent had decided to accept as war-caused a psychoactive substance abuse or dependence condition and had decided that the correct rate of pension should be 80 per cent of the general rate.
Section 175(3) of the Act provides…

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 Hancock and Repatriation Commission

Details

AGLC: Hancock and Repatriation Commission [2000] AATA 998
Case: [2000] AATA 998
Decision Date: 14 November 2000

CaseChat Overview and Summary

The matter before the court involved Mr Hancock, a former serviceman, who was seeking to have his disability pension assessed at a higher rate. The Repatriation Commission, as the respondent, had previously assessed Mr Hancock's pension at the intermediate rate. Mr Hancock argued that he should receive the special rate due to his war-caused disabilities and their impact on his ability to engage in remunerative work. The case was heard in the Federal Court of Australia, with Mr Hancock represented by Mr Dawson, and the Repatriation Commission represented by Mr Modder.

The primary legal issue before the court was whether Mr Hancock's disabilities, which included post-traumatic stress disorder (PTSD) and other physical and mental health conditions, sufficiently impaired his capacity to undertake remunerative work to warrant payment at the special rate under the Veterans' Entitlements Act 1986. The court had to consider the extent to which Mr Hancock's disabilities contributed to his inability to secure employment and whether these disabilities were a result of his service.

The court found that Mr Hancock's disabilities were indeed war-caused and significantly impacted his ability to engage in remunerative work. The evidence presented, including medical reports and Mr Hancock's testimony, indicated that his disabilities, particularly PTSD, were severe and had rendered him unfit for most forms of employment. The court also considered Mr Hancock's efforts to find work, despite his disabilities, and noted that he had applied for numerous jobs without success. The court concluded that Mr Hancock's disabilities were a substantial factor in his inability to secure employment, thereby warranting the special rate under the Act.

The court ordered that the decision of the Repatriation Commission be set aside and remitted back to the Commission to recalculate Mr Hancock's disability pension at the special rate, effective from 28 May 1996. This decision recognised the significant impact of Mr Hancock's war-caused disabilities on his capacity to work and adjusted his pension rate accordingly.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of this matter the Applicant was represented by Mr Dawson of counsel and the Respondent was represented by Mr Modder, an advocate from the Department of Veterans' Affairs.FACTS The following facts are drawn from Exhibit TD1. Mr Hancock was born on 13 August 1947. He enlisted in the army on 27 February 1968 and was discharged on 29 November 1993. He had operational service in Vietnam between 18 June 1969 and 18 June 1970 and between 9 September 1971 and 23 December 1971. He saw eligible defence service from 7 December 1972 until 29 November 1993. Mr Hancock has not been employed since leaving the army except from October 1995 to May 1996 on a Commonwealth Employment Service ("CES") scheme. He was an assistant clerk doing clerical and sales work (T7). Material in Exhibit TD1 relevant to the Applicant's possible qualification for payment at the intermediate rate (IR) or special rate (SR) was as follows: In his alcohol questionnaire completed on 26 August 1996 (T5) Mr Hancock stated that he drank alcohol; that he had started before service in 1966; that he drank beer; that he started out drinking no more than one or two drinks of beer a week and that this changed on active service in Vietnam. He said that in Vietnam he would drink every time he could. He would "get rotten drunk" several times a week. His daily intake in August 1996 was 21 standard drinks or more. Mr Hancock's employment history questionnaire dated 28 August 1996 (T7) indicates that he retired on 25 May 1996 due to war-caused disabilities. He was "not kept on at the end of the CES job placement scheme for disabled job seekers." In a Department of Veterans' Affairs ("DVA") lifestyle rating form Mr Hancock assessed the effects of his disabilities on his lifestyle. As regards domestic and employment activities he rated himself at the maximum rating of 5, "unable to work". This rating was accepted and applied by the Respondent in its decision dated 17 February 1997 (T13). In his claim form at T8 the Applicant said he was not currently employed in August 1996 because of war related conditions. Further he wrote: "Can not obtain employment due to severe war caused disabilities. Had to leave army as I could no longer cope due to war caused PTSD. Could not get promotion due to my war caused disabilities". (T8, p44) Dr B J Kelly, physician, in a report dated 31 October 1996 prepared for DVA (T9) wrote, amongst other things, that Mr Hancock smoked 50 cigarettes a day and drank 15 middies a day. He played 18 holes of golf three times a week. He would get slightly dyspnoeic on hills but could keep up with men of his own age. Dr S Huntsman, psychiatrist, in a report dated 9 December 1996 prepared for DVA (T11) wrote amongst other things, that Mr Hancock told him he had left the army because he was physically unable to cope after he had developed an inguinal hernia (an accepted disability). He drank about 60 grams of alcohol a day in 1996. This was lower than it had been. He smoked 30 cigarettes a day. He had alcohol dependence of long standing which had never been treated. Dr Huntsman felt he was suffering from an adjustment disorder with depressed mood derived from his then current unemployment. He wrote: "…It is clear that his long career in the army and the social isolation involved has left him ill-equipped for subsequent involvement in the workforce. I feel he would benefit from rehabilitation addressing these particular areas." (T11, p51)

Evidence

Evidence Before The Court

Dr T Anderson, occupational physician, in a report for DVA prepared on 22 December 1999 commented on Mr Hancock's employment history and fitness for work. He noted that Mr Hancock was discharged from the army at his own request. In Dr Anderson's view the Applicant was capable of continuing with his army work when he retired. He could probably have carried on for a few more years if he had looked after himself more appropriately. He is currently fit for most office-type occupations. With his existing telecommunications knowledge he would have been sought by many telecommunications firms. He could do accountancy work as he has done already. As a one time senior non-commissioned officer in the army he would have quite good middle management skills. APPLICANT'S EVIDENCE In his oral evidence Mr Hancock told his counsel, Mr Dawson, that he left the army because of hernia operations and fitness problems. His work experience job involved book work and labouring. He had been on newstart allowance and at that time applied for jobs without success. He had applied for 50 or 60 jobs in a 12 month or longer period. He succeeded in obtaining one bona fide interview and another that was "not really an interview". He drinks as much alcohol as he can afford, 10 to 12 middies a day. He drinks only beer and starts at about 11.00 am. He buys a carton of beer each fortnight but drinks mainly at his club. He does not eat as he should and regularly skips lunch. The Applicant stopped looking for work in 1997. By that time he was in receipt of DVA Disability and Service/Invalidity Pensions. Mr Modder for the Respondent took Mr Hancock to a number of issues. He fished two days a week up to about six months before the hearing. He does not socialise much with Vietnam veterans. He still plays golf once a week on Thursday or Saturday. He goes to a cricket club and scores for his nephew's team. He helps sell tickets for meat raffles at the club. The Applicant will receive his superannuation at age 55 and he currently receives rent assistance. The Applicant does not consider he is living comfortably on his current income. On the question of job search activity the Applicant gave the following information. He has looked for jobs doing office work, sales and as a course ranger at the golf club. He tried for a job in a pet shop. He owns pet birds. He thought he could do a clerical job but that is much less clear now. He is prone to headaches. As regards the job market in Casino (where he lives) he said that there seem to be job advertisements in The Northern Star. He would be prepared to apply for jobs within a 20 kilometre radius. This takes in Lismore, Ballina, Grafton and Kyogle. Mr Hancock agreed he has good computer skills. He considers that he has tried "pretty hard" to find work. He missed no days when he worked on the CES job in Ballina for six months. APPLICANT'S SUBMISSIONS Mr Dawson made the following arguments on behalf of Mr Hancock: The decision of Hill J in the Federal Court of Australia in Birtles v Repatriation Commission (1991) 105 ALR 359 relates to the application of ss 23 and 24 of the Act in areas suffering from a depressed labour market. Mr Dawson cited the decision as standing for the proposition that if, as a matter of fact, by reason of his war-caused incapacities, the veteran was unable to work, although otherwise willing and able to do so, his retirement to the coast where it could be difficult to obtain remunerative work of his main or chosen variety was no disqualification under s 23(1)(c) or s 24(1)(c) of the Act.

Decision

Reasons for decision

The Tribunal is satisfied that Mr Hancock should be paid the SR under s 24 of the Act.DECISION The decision under review is set aside and the matter is remitted to the Respondent to calculate Mr Hancock's rate of Disability Pension on the basis that he qualifies for payment at the special rate with a date of effect of 28 May 1996.

Ratio Decidendi

Legal Principle Established

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