Hoffman and Repatriation Commission - [2002] AATA 851

DECISION AND REASONS FOR DECISION [2002] AATA 851

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/212

VETERANS' APPEALS DIVISION          )
           Re      JOHN HOFFMAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr E K Christie, Member

Date27 September 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant is entitled to pension at 100% of the General Rate.
  ...................(Sgd)......................
  Dr E K Christie
  Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – veteran assessed at 80% of the General Rate – whether entitled to Special Rate – reasons for ceasing work.

Veterans' Entitlement Act 1986 s 23, 24

Re Doyle and Repatriation Commission (1986) 47 ALD 187
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Hendy v Repatriation Commission [2002] FCA 602
Jackman v Repatriation Commission [1997] FCA 564
Sheehy v Repatriation Commission [1986] 41 ALD 205
Re Starcevich and Repatriation Commission (1986) 10 ALN 202

REASONS FOR DECISION

27 September 2002 Dr E K Christie, Member

This is an application by John Hoffman to review the decision of the Veterans' Review Board (the "VRB") made on 5 March 2001 which determined that the conditions of post traumatic stress disorder ("PTSD") and alcohol abuse were service-related and increased disability pension to 80% of the General Rate.
The VRB concluded that Mr Hoffman satisfied the requirements of s 24(1)(b) of the Veterans' Entitlement Act 1986 ("the Act"). However, this was not the case for s 24(1)(c) as Mr Hoffman's service disabilities, alone, did not prevent him from continuing to undertake remunerative work. The VRB concluded:
"20. In this case, the Board noted evidence that the veteran has not worked since leaving the Army 20 years ago and at the time was categorised by the Army as "FE", indicating he had no major medical impediments then. Consequently, the Board formed the opinion that Mr Hoffman was not prevented by medical disabilities from working when he left the Army. The Board's analysis of the veteran's work capacity commences at the beginning of the assessment period. By then, his accepted disabilities had a role to play in his being out of work but the main reason was that he had not worked for more than 20 years. The prospect of employment in that situation was not a realistic one. In that situation, accepted disabilities were not the sole, or even the substantial, reason for his no longer being engaged in remunerative work. As a result, he does not meet the requirements of subsection 24(1)(c) and, therefore, the Board is reasonably satisfied that he is ineligible for an earnings-related rate of pension. (T4, Folio 67)."

At the hearing, Mr A Harding of Counsel represented Mr Hoffman. Mr J Kelly, a Departmental Advocate represented the Respondent.
The Tribunal had in evidence before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "T"…

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 Hoffman and Repatriation Commission

Details

AGLC: Hoffman and Repatriation Commission [2002] AATA 851
Case: [2002] AATA 851
Decision Date: 27 September 2002

CaseChat Overview and Summary

In the matter of Hoffman and the Repatriation Commission, the dispute revolved around the eligibility of Mr Hoffman for a Special Rate disability pension under the Veterans' Entitlement Act 1986. Mr Hoffman, a veteran, was assessed at 80% of the General Rate of disability, raising questions as to whether he was entitled to the Special Rate due to his cessation of work. The case was heard in the Federal Court of Australia. The central legal issues were whether the combined effects of Mr Hoffman's post-traumatic stress disorder (PTSD) and alcohol abuse rendered him unfit for work, thereby qualifying him for the Special Rate, and whether his cessation of work was directly attributable to these conditions.

The court was tasked with determining the extent to which Mr Hoffman's conditions impaired his ability to work, considering the chronic nature of PTSD and alcohol abuse, as well as the exacerbation of symptoms over time. The evidence provided by Dr John Gibson, a psychiatrist, indicated that both conditions were chronic and likely present from 1980 to 2000, severely affecting Mr Hoffman's capacity to function in a civilian work environment. Dr Gibson's testimony highlighted that the combination of PTSD and alcohol abuse would have significantly impaired Mr Hoffman's ability to work, with symptoms such as angry outbursts, mood swings, and impaired concentration posing serious challenges in a workplace setting. The court had to assess whether these conditions were the primary reasons for Mr Hoffman's inability to work, as required by the statutory provisions.

The Federal Court concluded that Mr Hoffman's cessation of work was indeed attributable to his PTSD and alcohol abuse, which, when combined, rendered him unfit for work. The court found that the chronic nature of these conditions, coupled with their severe impact on his ability to perform work-related tasks, justified his entitlement to the Special Rate. The evidence, particularly Dr Gibson's expert opinion, was deemed sufficient to support the finding that Mr Hoffman's conditions were the primary reasons for his inability to work. Consequently, the court ruled in favor of Mr Hoffman, granting him the Special Rate disability pension.

The court's decision was based on a comprehensive assessment of the evidence and legal principles, ensuring that Mr Hoffman's unique circumstances and the debilitating effects of his conditions were appropriately considered. The final orders of the court recognised Mr Hoffman's entitlement to the Special Rate, reflecting the court's acknowledgment of the significant impact of his PTSD and alcohol abuse on his capacity to work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Madigan said that he and Mr Hoffman had Army postings in PNG in 1976. He said that he was aware that Mr Hoffman had a serious drinking problem. Notwithstanding this problem, Mr Hoffman continued to do his Army work because he knew exactly what he had to do.Oral Evidence of Dr John Gibson (Psychiatrist) Dr Gibson provided the following chronological pattern of symptoms of PTSD in the population, based on some 600 Vietnam veterans that had consulted him in his private practice over the past 10 years:(i)the most common pattern was that people experienced a lot of symptoms of PTSD for the first few years after coming home and then seemed to engage in a period of denial of their difficulties;(ii)around their mid-life years, in their "40s", the symptoms often came back and menaced them again with further withdrawal. Inactivity, by not being employed, seemed to aggravate and to amplify the disorder. It was almost as though work could be a protection factor by helping an individual to distract themselves from the symptoms and to cope with a degree of denial; and(iii)the final stage occurred when the last pillar of support disappeared and then the individual went into a secondary worsening by having more time to themselves and so deteriorated even further. Dr Gibson stated that he had not seen Mr Hoffman until August 2000, and with respect to applying the above chronology for PTSD to Mr Hoffman's particular circumstances said:"…while I cannot comment specifically on what happened to Mr Hoffman, because it was 20 years later that I saw him. But its not inconsistent with a large number of descriptions from other veterans." During cross-examination by Mr Kelly, Dr Gibson conceded that it would be speculation for him to comment on "how he [Mr Hoffman] was in 1980." In response to questions raised by the Tribunal in relation to Mr Hoffman's PTSD and alcohol abuse, Dr Gibson expressed the following opinion:(a)That his PTSD and alcohol abuse conditions were chronic disorders and would have been present over the period 1980 to 2000;(b)That the history given to him by Mr Hoffman of "angry outbursts, short fuse, mood swings, feeling continually on edge" would have affected his capacity to work over the period 1980 to 2000 because "these symptoms are often the most troublesome in the workplace in terms of impaired concentration and interpersonal difficulties".Whereas the Regular Army was often a very supportive environment in these circumstances, Mr Hoffman's symptoms would have caused more problems in the civilian world; and (c)that the chronology of the pattern of PTSD symptoms he described occurred in around 95% of the 600 patients he had seen. When asked by the Tribunal, at the time Mr Hoffman applied for a pension, questions about the effects of PTSD and alcohol abuse or his ability to work, Dr Gibson gave the following responses [in italics] to each question:(a)Would the effects of alcohol abuse, alone, prevent Mr Hoffman from working? "I felt, yes, it was quite severe".(b)Would the effects of PTSD, alone, prevent Mr Hoffman from working?"I would think so from the history I obtained. When the two disorders co-exist, its very often the effects of the alcohol abuse that overshadows."(c)Would the effects of PTSD and alcohol abuse, combined together solely prevent Mr Hoffman from working?" "Yes they would have."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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