HARVEY and REPATRIATION COMMISSION - [2010] AATA 870

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 870
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4197

VETERANS’ APPEALS DIVISION )

Re GORDON HARVEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date5 November 2010
PlaceBrisbane (Heard in Darwin)

Decision
The Tribunal sets aside the decision under review and substitutes a decision that, with effect from 28 February 2009, the applicant is entitled to be paid at the special rate of pension until 30 September 2011.

..............Signed.................
Deputy President

CATCHWORDS
VETERANS’ ENTITLEMENTS – pension at special rate - whether conditions permanent or temporary - decision under review set aside and substituted for decision that with effect from 28 February 2009 applicant entitled to be paid at special rate of pension until 30 September 2011
Veterans’ Entitlements Act 1986 (Cth), ss 24. 25
REASONS FOR DECISION

5 November 2010 Deputy President P E Hack SC

The applicant, Mr Gordon Harvey, was conscripted into the Australian Army in 1968. He saw active service in Vietnam between November 1968 and December 1969. Mr Harvey is incapacitated by a number of medical conditions that the respondent, the Repatriation Commission, accepts are “war-caused” as that expression is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).
The presence of the various war-caused conditions entitles Mr Harvey to a pension by way of compensation. In these proceedings Mr Harvey contends that he is entitled to a pension at the “special rate” i.e. the rate referred to in s 24 of the VEA, because he is “totally and permanently incapacitated”. The only issue in the proceedings is whether Mr Harvey’s incapacity is permanent, the Commission now accepting that the other criteria in s 24 of the VEA are satisfied.
There is no substantial dispute about the facts. Mr Harvey is an electrician by trade. With two others, he built up a very successful electrical contracting business called Delta Electrics based in Darwin. It is enough for present purposes to note that Mr Harvey’s involvement in the business came to an end, and his interest in the business was bought out by his fellow directors, in February 2009. Simply put, the other directors of the company were unable to tolerate his poor temperament and required his resignation from the company. That temperament was a consequence of Mr Harvey’s post traumatic stress disorder, an accepted war-caused condition.
The special rate of pension is payable to those who satisfy each of the criteria in paragraphs (aa) to (d) of s 24(1) of the VEA. It is only necessary to note paragraphs (b) and (c). Those paragraphs read:
“(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;”
Here the Commission accepts that s 24(1)(c) has been satisfied and that s 24(1)(b) is satisfied save and except for the requirement that the incapacity be permanent. I consider the Commission’s concessions to be well made and, as will appear, I accept, as the Commission submits, that the evidence falls short of demonstrating that the incapacity is permanent. In these circumstances it is necessary to consider the operation of s 25 of the VEA. It provides for temporary payment at the special rate. It is in these terms:
“(1)Where the Commission is satisfied that:
(a)a veteran is temporarily incapacitated from war‑caused injury or war‑caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2)Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsection 24(4), (5) or (6).
(3)The Commission may, under this section:
(a)determine a period that commenced before the date on which the determination is made; and
(b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.”
Mr Harvey is prevented from continuing to undertake remunerative work by a combination of physical and mental conditions. In addition to post traumatic stress disorder, Mr Harvey has osteoarthrosis of the left ankle and of the right wrist which are also accepted as being war-caused conditions. There is no doubt however that the physical conditions are permanent. The issue is whether the incapacity arising from the post traumatic stress disorder is permanent.
Dr Marty Ewer, a consultant psychiatrist, has provided two reports on Mr Harvey’s condition and provided oral evidence. In his report of 28 January 2009, based on a consultation with Mr Harvey in January 2009, Dr Ewer referred to Mr Harvey’s inability to work eight hours per week and said:
“Given that Mr Harvey has yet to receive the benefit of psychiatric treatment I would take a conservative approach and rate his current mental state as ‘temporary’. Should there be no change with eight to ten months of psychiatric treatment I would consider his psychiatric state to be ‘permanent’”.
Dr Ewer saw Mr Harvey again in February 2010. In his report of 19 February 2010 Dr Ewer said:
“Mr Harvey has yet to receive best practice, evidence based treatment for his Chronic Post-Traumatic Stress Disorder and Alcohol Dependence. I am optimistic that his level of disability will reduce with appropriate treatment and therefore, until he has had the benefit of appropriate treatment he cannot be considered to have reached maximal medical improvement and therefore Mr Harvey’s current total incapacity for work cannot currently be considered permanent.”
Dr Ewer remains of the view that with best practice, evidence based treatment, which Mr Harvey has not as yet had, there was hope of some improvement in his condition. He considered that another eight months of treatment would be necessary before it could be determined that the condition was permanent.
Mr Harvey has undergone some counselling comprising eight appointments with the Veterans and Veterans Families Counselling Service between June and September 2010[1]. Ms Heather Parbs, the psychologist from that Service, considers that Mr Harvey would benefit from another programme of intensive residential treatment.
[1] Mr Harvey himself spoke of commencing counselling in “probably February this year”. I consider it preferable to act on the dates in Ms Parbs’ report.
In these circumstances I am not satisfied that Mr Harvey’s conditions of post traumatic stress disorder and alcohol dependence are permanent and it is accordingly not possible for me to be satisfied, on the present state of the evidence, that he is totally and permanently incapacitated. I am however satisfied that the evidence admits of the conclusion that Mr Harvey is temporarily incapacitated from his war-caused conditions. It is temporary in the sense that there is a prospect of improvement in Mr Harvey’s condition by appropriate treatment over the ensuing months. It may be that after appropriate treatment Mr Harvey’s condition, in combination with the other physical limitations, admits of the conclusion of permanent incapacity however it is not open on the present state of the evidence to reach that conclusion.
Section 25 requires the determination of the period during which the incapacity is likely to continue. Dr Ewer’s evidence spoke of a treatment period of eight months. The Commission suggests, and I agree, that a period of one year from the date of the hearing is appropriate. I will then set aside the Commission’s decision and substitute a decision that Mr Harvey is entitled to be paid at the special rate of pension until 30 September 2011.
A question then arises as to the date of effect, that is, the starting date, of that decision. Mr Harvey’s application for an increase in his rate of pension was lodged on 16 September 2008. Mr Piper, the solicitor for Mr Harvey, contended that the date of effect ought be 7 August 2008 on the basis that that was the time when Mr Harvey commenced “suffering a loss of salary or wages, or of earnings on his … own account” from that date. The contention is based upon the evidence of Mr Harvey that from that date his fellow directors “contrived” to stop the payment of director’s fees that had, apparently, been paid to Mr Harvey’s superannuation account to that date. Mr Harvey continued to be paid his wages from employment until 27 February 2009, the day prior to the execution of the deed of settlement by which Mr Harvey withdrew from any involvement in the company.
I do not regard the evidence as providing a satisfactory basis from which I could conclude that Mr Harvey was suffering such a loss. The evidence was given almost as an aside, it being no part of the case for Mr Harvey, as articulated in his Statement of Facts and Contentions dated 11 June 2010 that he commenced suffering a loss of salary or wages, or of earnings on his own account from 7 August 2008 rather than from 27 February 2009 when he actually ceased work.
The date of effect then ought to be 28 February 2009.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ............Signed..........................................................
  Associate
Date of Hearing  29 September 2010
Date of last submissions          29 October 2010
Date of Decision  5 November 2010
Solicitors for the Applicant        Pipers
For the Respondent                  Mr J Stoner, Departmental advocate