Head and Repatriation Commission - [2001] AATA 947

DECISION AND REASONS FOR DECISION [2001] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1428

VETERANS' APPEALS DIVISION          )
           Re      JAMES HEAD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date16 November 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that the appropriate impairment rating of the Applicant's post-traumatic stress disorder and hypertension is 45 and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 26 September 1996.
  [sgd]Ms N Bell
  Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension – rate assessment – whether entitled to special rate – post-traumatic stress disorder – hypertension – whether war-caused diseases – whether ability to work for more than eight hours per week

Veterans' Entitlements Act 1986

Banovich v Repatriation Commission (1986) 69 ALR 395
Forbes v Repatriation Commission [2000] FCA 328
Birtles v Repatriation Commission (1991) 33 FCR 290
Turnbull v Repatriation Commission [1997] 421 FCA

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr James Head ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 20 February 1997 to grant disability pension at 60 percent of the general rate with effect from 13 June 1996. That decision was affirmed by the Veterans' Review Board on 18 July 2000.
The Applicant was represented by Mr Dawson of Counsel and the Respondent was represented by Ms Hook. Oral evidence was given at the hearing by the Applicant and by Dr A Dinnen. The following the documentation was taken into evidence:
TD1 Documents under section 37 of the Administrative Appeals Tribunal Act (1975), T1 – T24, pages 1 – 130
A1      Applicant's Statement of Facts and Contentions
A2      Applicant's statement dated 1 April 2001
A3      Applicant's statement dated 22 February 2001
A4      Dr K Helme's report dated 8 February 2001
A5      Dr A Dinnen's report dated 10 January 2001
R1      Respondent's Statement of Facts and Contentions
R2      Mr D Cipriani's report dated 27 January 2001
R3      Mr J Raue's report dated 15 January 2001
R4      Applicant's table of work history

The issues for consideration in this application are:

a) the correct assessment of the rate of pension to be paid to the Applicant; and

b) whether the Applicant is entitled to be paid the special rate of pension.

applicant's evidence

The Applicant, in his oral evidence to the Tribunal, confirmed the contents of his statements dated 22 February 2001 and 1 April 2001. The first of those statements concerns the development of the Applicant's post-traumatic stress disorder, now a condition accepted by the Respondent as being war-caused.
The second statement, dated 1 April 2001, concerns the Applicant's employment as a relief maintenance worker at Peel Technical High School for a period of two weeks. The Applicant described this as his last formal employment. He said that his duties included mowing lawns, doing yard work, cleaning guttering, repairing sprinkler systems,…

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

AGLC: Head and Repatriation Commission [2001] AATA 947
Case: [2001] AATA 947
Decision Date: 16 November 2001

CaseChat Overview and Summary

This application involves the Applicant's claim for a special rate disability pension under the Veterans' Entitlements Act 1986. The Applicant asserts that he is entitled to a special rate pension due to his post-traumatic stress disorder and hypertension, which he claims are war-caused diseases. The matter was heard by the Administrative Appeals Tribunal, which had to determine the appropriate impairment rating for the Applicant's conditions and whether he qualified for the special rate pension.

The primary legal issues before the Tribunal were the appropriate impairment rating for the Applicant's post-traumatic stress disorder and whether he was entitled to the special rate pension. The Tribunal had to consider the relevant guidelines and evidence presented, including the Applicant's testimony, medical reports, and the assessments by various doctors. The Applicant's ability to work more than eight hours per week was also a critical factor in determining his eligibility for the special rate pension.

The Tribunal carefully examined the evidence and concluded that the appropriate impairment rating for the Applicant's post-traumatic stress disorder was 15 under table 4.1 (subjective distress), ten under table 4.2 (manifest distress), and three under table 4.3 (functional effects). The Tribunal considered the Applicant's subjective distress, marked interference with function in many everyday situations, and the treating doctor's assessment. Given the total impairment rating of 45, the Tribunal determined that the Applicant qualified for the special rate pension. The Tribunal set aside the original decision and substituted it with its own decision, which granted the Applicant's claim for the special rate pension effective from the first pension payday on or after 26 September 1996.

The Tribunal's decision was based on a thorough assessment of the evidence and a careful application of the relevant guidelines. The Tribunal concluded that the Applicant's conditions warranted a special rate pension and ordered the Respondent to pay the Applicant at the special rate from the specified date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was some controversy in this application as to the date of the Applicant's last paid work. As stated previously, the Applicant conceded that, given that disability pension had commenced to be paid by the Respondent from 26 September 1996, a fact agreed to by the Respondent, entitlement to disability pension at the rate claimed commences on 26 September 1996. The Tribunal considers that, in the absence of any other evidence of the precise date of the Applicant's last employment and given the random nature of his employment after 1993, it is appropriate to adopt 26 September as the date of the Applicant's entitlement to the payment of pension at the special rate.decision The Tribunal sets aside the decision under review and in substitution therefor decides that the appropriate impairment rating of the Applicant's post-traumatic stress disorder and hypertension is 45 and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 26 September 1996.

Ratio Decidendi

Legal Principle Established

The parties had some discussion in relation to the Applicant's date of last paid work. While they were unable to agree on a date, both consulted the Respondent's pension file and agreed that disability pension had commenced to be paid by the Respondent from 26 September 1996, there having been some exchange between the Respondent and Centrelink in relation to an amount to be paid back to Centrelink by the Respondent for a period before payment commenced. On this basis, the Applicant conceded that entitlement to disability pension at the rate claimed should commence on 26 September 1996.consideration - assessment The first issue for the Tribunal to consider is the appropriate impairment rating to be allocated to the Applicant in respect of his accepted disabilities (post-traumatic stress disorder and hypertension) under the GARP. The Applicant has not sought to have the rating of five in respect of hypertension altered. It remains for the Tribunal to decide the appropriate rating for the Applicant's post-traumatic stress disorder. Taking each of the tables in the GARP relevant to emotional and behavioural conditions in turn, in respect of table 4.1 (subjective distress) the Tribunal considers that the Applicant should be allocated 15 in that table. The Tribunal accepts the Applicant's evidence of his inability to sleep, to concentrate and to exist without the assistance and support of others including select neighbours and his brothers. The Tribunal concludes that this amounts to "persistent symptoms causing considerable distress. Relief for the veteran from that distress is difficult to achieve even with a high level of support and reassurance". Dr Dinnen also rated the Applicant at this level. In relation to table 4.2 (manifest distress), the Tribunal prefers the assessment of Dr Helme, the Applicant's treating doctor who sees him regularly. His view is that the Applicant's distress is "obvious to untrained observers. Anxiety and irritability clearly obvious". The Tribunal considers that the Applicant falls short of "obvious continual distress", which would attract a rating of 15. Rather, he exhibits obvious distress on an apparently less than continuous basis. The Tribunal considers this attracts a rating of ten as "obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran". Dr Helme, the Applicant's treating doctor allocated a rating of five in respect of table 4.3 (functional effects). This rating indicates "marked interference with function in many everyday situations". The Applicant's evidence of functional limitations was in relation to travelling on public transport, attending places including crowded shopping centres, attending to his garden and to his housework and driving for more than 30 minutes. Dr Dinnen considered that the Applicant experienced "moderate interference with function in some everyday situations" and allocated a rating of two, as did Mr Cipriani. The Tribunal notes that there is no evidence to suggest that the Applicant is unable to deal with personal hygiene, to find his way around or to prepare and consume food (all matters mentioned in the notes to the table). However, the Tribunal considers that, on the basis of the Applicant's evidence, he suffers interference with function in a significant number of important areas and that this constitutes "moderate interference with function in many everyday situations" and attracts a rating of three.