Hanley and Repatriation Commission - [2000] AATA 954

DECISION AND REASONS FOR DECISION [2000] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1612

VETERANS' APPEALS DIVISION          )
           Re      RONALD HANLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date1 November 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof finds that the Applicant qualifies for the payment of pension at special rate from 28 February 1997.

[Sgd]: Dr J D Campbell
Member
CATCHWORDS
VETERANS' ENTITLEMENTS– accepted disabilities – post traumatic stress disorder – assessment – ability to work – alone test – seeking employment
Veterans' Entitlement Act 1986, sections 23, 24, 120
Conway v Repatriation Commission (1988) 9 AAR 397

REASONS FOR DECISION

Dr J D Campbell, Member

Mr R Hanley ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 15 September 1988 which set aside the decision of the Repatriation Commission ("the Respondent") dated 4 August 1997 and in substitution thereof found that pension for the Applicant's war-caused disabilities be assessed at 80 per cent of the General Rate from and including 28 February 1997.
A hearing was held before the Tribunal on 2 February 2000, with the matter adjourned at day's end to enable the Respondent to seek further clinical material. The hearing was resumed on 20 July 2000. At both hearings the Applicant was represented by Mr Smith of counsel, and the Respondent was represented by Ms Breuer, an advocate from the Department of Veterans' Affairs. Oral evidence was presented to the Tribunal by Dr Hordern and Dr Lewin, both consultant psychiatrists.
The following material was placed in evidence before the Tribunal:
Documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T14, p1-65
Statement of Mr L R Downs dated 2 February 2000     Exhibit A1
Statement of Mr C T Watts dated 4 January 2000        Exhibit A2
Medical report of Dr Hordern dated 22 June 1999       Exhibit A3
Report of Ms L Good, psychologist dated 25 January 2000    Exhibit A4
Letter from Department of Veterans' Affairs dated 17 November 1997        Exhibit A5
Applicant's statement of facts and contentions dated 6 July 1999     Exhibit A6
Applicant's list of herbal medications, undated Exhibit A7
Medical report Dr Baz dated 31 January 2000   Exhibit A8
Medical report of Dr Baz dated 1 March 2000    Exhibit A9
Medical report of Dr Lewin dated 17 May 1999 Exhibit R1
Medical report of Dr Burns dated 30 June 1999 Exhibit R2
Clinical notes from Mr P Bradley re the Applicant dated 26 February 1999 Exhibit R3

Issues

The relevant issue in this matter is whether the Applicant qualifies for a pension at the special rate.
Legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 23, 24, 120(4).
Matters Agreed
The following matters are agreed between the parties:
(a)that the assessment of the Applicant's incapacity from his war caused disabilities is 80 per cent;
(b) that the Applicant's…

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 Hanley and Repatriation Commission

Details

AGLC: Hanley and Repatriation Commission [2000] AATA 954
Case: [2000] AATA 954
Decision Date: 1 November 2000

CaseChat Overview and Summary

The case involves an application by a veteran for an increase in his disability pension. The matter was heard by the Administrative Appeals Tribunal (AAT). The central issue was whether the veteran was entitled to a special rate of pension under section 24 of the Veterans' Entitlement Act 1986, which requires the veteran to be totally and permanently incapacitated by reason of war-caused injury or disease, and to be prevented from undertaking remunerative work solely due to that incapacity. The Tribunal had to determine if the veteran's incapacity was the sole reason for ceasing work, or if there were other factors involved.

The Tribunal examined the veteran's history, the opinions of medical experts, and the veteran's own statements regarding his reasons for leaving employment. The Repatriation Commission argued that the veteran had ceased working for reasons unrelated to his war-caused disabilities, such as personal lifestyle changes or health issues diagnosed after his service. The Tribunal had to weigh this argument against the veteran's claims of ongoing incapacity due to his war experiences, particularly his battle with post-traumatic stress disorder. Ultimately, the Tribunal found that the veteran's incapacity from his war-caused disabilities was the sole reason for his inability to continue working, and that he met the criteria for the special rate of pension under section 24.

In conclusion, the Tribunal determined that the veteran was entitled to the special rate of pension. The Tribunal found that the veteran's incapacity due to his war-caused disabilities was the sole reason for his inability to undertake remunerative work, and that this incapacity alone prevented him from continuing his employment. The Tribunal accepted the evidence of the veteran's ongoing struggle with post-traumatic stress disorder, and rejected the arguments presented by the Repatriation Commission. The Tribunal's decision was in favour of the veteran, affirming his eligibility for the increased pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant lodged a claim for an increase in disability pension on 19 May 1997 (T3). A decision was made by the Repatriation Commission on 4 August 1997 to increase the assessment of incapacity of the Applicant's war caused disabilities to 60 per cent, with the acceptance of post traumatic stress disorder as a war caused disability (T9). On 15 September 1998 the Veterans' Review Board increased the assessment of the Applicant's incapacity arising from his war caused disabilities to 80 per cent (T2). Applicant's Evidence The Applicant told the Tribunal that he was born in Seymour on 6 December 1943, leaving school at the age of 13½ to work in full-time employment in a retail chain store because of family circumstances. His duties were mainly clerical and shelf stocking and he became the relieving assistant manager. The Applicant stated that at the age of 17½ he moved to Melbourne where he continued to work until the age of 23, at which time he decided to enlist in the Army, because he "wanted a change." The Applicant further stated that in 1967, after recruit training, he was allocated to Service Corps and late that year he was posted to Vietnam, where his duties were similar to his previous employment, namely loading stores onto trucks, convoys and stores work. The Applicant stated that he was located at Nhui Dat in tents about 100 metres away from the airstrip and was subject to incoming fire every four to five weeks. For the first four to five times he joined the others in their bunker, but later found it preferable to stay in his tent, because he thought the bunker would end up being his grave. Ever since these events, the Applicant stated that he has always sought to avoid similar circumstances and cannot wait to open the shower door in the shower cubicle. The Applicant stated that he has never been under direct enemy fire and although he did his share of perimeter patrolling, the Applicant stated that there were several occasions which caused him much concern, namely:(a)when he and his friend were nearly shot by friendly fire by another soldier; and(b)when driving a forklift and loading a pallet of rockets which were fused but not primed, the case broke apart with the rockets spilling two to three feet to the ground; On his return to Australia, he applied to return to Vietnam, because his job in Australia was uninteresting in comparison to his Vietnam experiences. The Applicant stated that he remained in the Army for 20 years, serving twice in Townsville, and once in each of Brisbane, Darwin, Canungra, Seymour and Puckapunyal. He was promoted to Sergeant, but requested reversion to Corporal towards the end of his service. The Applicant stated that during his service he was treated twice for nerves by army medical officers, who placed him on Valium for a three-month period on each occasion. This was due to the symptoms of being upset, vomiting, shaking and not being able to cope with his job. Further the Applicant stated that he drank heavily while overseas and during the late seventies and early eighties he was drinking in excess of a litre of Scotch, three or four days every week. The Applicant stated that he later tried to reduce his intake of alcohol and with new friends and more exercise has managed to abstain from alcohol since 1992, although he still experiences the temptation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The advocate for the Respondent submitted that the Applicant did not satisfy section 24(1)(c) in that the Applicant ceased undertaking remunerative work for reasons other than incapacity arising from war-caused disabilities. In this regard it was submitted that the Applicant ceased work for reasons of a personal lifestyle change and/or a response to the diagnosis and treatment of the serious condition of malignant melanoma. In making such a contention, the Respondent relies upon the history as given by the Applicant, the opinion of Dr Burns and the statement made by the Applicant to Dr Lewin in detailing his reasons for leaving work in 1992.Consideration and Findings The Tribunal notes the statutory framework in this matter, which provides:"24 Special rate of pension(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 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 of 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; and(d)section 25 does not apply to the veteran.(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; 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."