Howard and Repatriation Commission (Veterans’ entitlements)

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Howard and Repatriation Commission (Veterans’ entitlements) [2015] AATA 922 (30 November 2015)

Division

VETERANS' APPEALS DIVISION

File Number

2014/3059

Re

Peter Howard

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 30 November 2015 
Place Sydney

1.      The decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension is set aside.

2.      In substitution it is decided that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

.....................[SGD]...................................................

J W Constance
Deputy President

CATCHWORDS

VETERANS' ENTITLEMENTS – pension – special rate of pension – whether veteran prevented by war-caused incapacity alone from continuing to undertake remunerative work – whether post-traumatic stress disorder, depressive disorder and alcohol use disorder are separate conditions

VETERANS' ENTITLEMENTS – pension – extreme disablement adjustment – whether veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points – decision set aside and new decision is substituted

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 15, 19, 22, 23, 24

CASES

Repatriation Commission v Richmond [2014] FCAFC 124

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

SECONDARY MATERIALS

Guide to the Assessment of Rates of Veterans’ Pensions (Fifth Edition)

REASONS FOR DECISION

Deputy President J W Constance
30 November 2015 

A. INTRODUCTION

  1. Mr Howard was born in March 1949. He served in the Australian Army from July 1970 to June 1971. During part of this time he served in the Vietnam War, mainly as a rifleman on jungle patrol.

  2. The Repatriation Commission has accepted that Mr Howard suffers from a number of medical conditions arising from his military service. As a result, Mr Howard is currently in receipt of a disability pension at 100 per cent of the general rate. The pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).

  3. On 25 July 2013, Mr Howard applied for an increase in the rate at which his pension was payable.  At the time he applied he was less than 65 years old. The Repatriation Commission refused his request.

  4. Mr Howard appealed to the Veterans’ Review Board. His application for payment of the pension at the Special Rate was again refused. The rate of pension was continued at 100 per cent of the General Rate.

  5. Mr Howard has applied to the Tribunal for a review of the decision of the Commission. For the reasons which follow, the decision under review will be set aside.  The decision refusing payment at the special rate will not be changed, although Mr Howard will be entitled to receive the extreme disablement adjustment.

    B. BACKGROUND

  6. Prior to his joining the Army in 1970, Mr Howard had been employed as a clerk by the Sydney County Council for about 4 ½ years. This was his first job having finished school and he…

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Details
Case
[2015] AATA 922
Decision Date

CaseChat Overview and Summary

The case before the court involved Mr Howard, a veteran who applied for an increase in his disability pension, arguing that he was prevented by his war-caused incapacity from continuing to undertake remunerative work. The court was required to decide whether Mr Howard's post-traumatic stress disorder, depressive disorder, and alcohol use disorder were separate conditions, and if Mr Howard qualified for the extreme disablement adjustment under the Veterans' Entitlements Act 1986 (Cth). The Repatriation Commission had previously rejected Mr Howard's application, but Mr Howard appealed to the Tribunal, which set aside the Commission's decision and substituted its own.

The court considered whether Mr Howard's war-caused incapacity alone prevented him from continuing his earlier remunerative work, which the court determined to be his role as the licensee/manager of a hotel. The court accepted Mr Howard's evidence that he was actively involved in managing the hotel until around 1995, and that his war-caused incapacity prevented him from continuing this work. The court also considered whether Mr Howard's post-traumatic stress disorder, depressive disorder, and alcohol use disorder were separate conditions, but ultimately determined that these conditions did not prevent Mr Howard from qualifying for the extreme disablement adjustment. The court found that Mr Howard had an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, and therefore was entitled to the extreme disablement adjustment.

In conclusion, the court set aside the decision of the Repatriation Commission and substituted its own, finding that Mr Howard was entitled to the extreme disablement adjustment in accordance with section 22 of the Veterans' Entitlements Act 1986 (Cth). The court's decision was based on its interpretation of the relevant statutory provisions and the evidence presented in the case. The orders of the court were that the decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension is set aside and that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

Orders

Orders of the court

1. The decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension is set aside.

2. In substitution it is decided that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

Background

Background to the litigation

Mr Howard has applied to the Tribunal for a review of the decision of the Commission. For the reasons which follow, the decision under review will be set aside. The decision refusing payment at the special rate will not be changed, although Mr Howard will be entitled to receive the extreme disablement adjustment.B. BACKGROUND Prior to his joining the Army in 1970, Mr Howard had been employed as a clerk by the Sydney County Council for about 4 ½ years. This was his first job having finished school and he thoroughly enjoyed it. Upon his discharge from the Army he returned to his previous position at the Council. However he found the resumption of civilian employment very difficult. He no longer enjoyed the work and described himself as “very angry”. He was moved to another position, outside of the Head Office. Mr Howard married in 1972, shortly after his return from Vietnam. In 1978 his wife died and he became solely responsible for the care of their two young children. Fortunately, family members assisted him with this task. In 1979 he was retired from the Sydney County Council as being medically unfit for work as a result of stress and anxiety. A short time later Mr Howard and his children moved from the family home to a hotel owned and operated by his late wife’s sister and her husband. This move was to enable them, and Mr Howard’s parents, to assist Mr Howard with the care of the children. Whilst living at the hotel Mr Howard spent considerable time with his brother-in-law and gained some experience in the skills needed to manage a hotel. Some time prior to 1980 it was suggested to Mr Howard that he and his brother-in-law and sister-in-law could purchase a hotel in partnership which would allow Mr Howard to employ a professional housekeeper to assist with the care of the children. In January 1980 Mr Howard and his brother-in-law purchased the Royal Hotel in Leichardt and Mr Howard and his children began living on the premises. Mr Howard and his brother had equal shares in the hotel property and business. Mr Howard held the licence for the hotel. Mr Howard’s brother-in-law spent some months assisting Mr Howard in managing the new business. His brother-in-law visited the hotel every week and assisted Mr Howard with monthly stock-takes. At this stage Mr Howard ran the front and back of house, attending to the payment of wages, banking and bar work. He had the assistance of a full-time manager and the usual staff. He was working full-time. Approximately 12 months after the hotel was purchased the partnership between Mr Howard and his brother-in-law was dissolved. The brother-in-law’s share in the property and business was purchased by Mr Howard’s father and a new partnership entered. When Mr Howard’s father retired in 1985 he started working at the hotel two days per week. He continued to do this until he became ill in 2003. By about 1984 Mr Howard was experiencing difficulties with the work involved in managing the hotel. He continued to suffer disrupted sleep and had problems with his relationship with members of the public. He withdrew from the front of house work and concentrated on the clerical work. He continued work such as taking deliveries, stocking the cellar, banking and preparation of wages.

Evidence

Evidence Before The Court

In his later reports and when he gave evidence, Dr Dinnen explained that the separation of three aspects of Mr Howard’s psychiatric disorder (i.e. post-traumatic stress disorder, depression and alcohol abuse) does not mean thatthere are two separate conditions apart from post-traumatic stress disorder.Evidence of Dr Smith, Consultant Psychiatrist Dr Smith assessed Mr Howard in February 2015 at the request of the Solicitors for the Commission. He provided a report dated 23 February 2015[11] and gave evidence.[11] Exhibit R4. Dr Smith does not agree that the conditions of depressive disorder and alcohol use disorder from which Mr Howard suffers are to be classified as part of his post-traumatic stress disorder. When he gave evidence Dr Smith said:The symptoms that he displayed were also consistent with a major depressive disorder. The cause of the major depressive disorder in all probability was multifactorial. I would view his major depressive disorder as reactive to significant events in his life. The death of his wife via suicide I think in 1978 following a series of miscarriages was I think a significant psychological blow to him. He had the added task of rearing two young girls. There were significantly family conflicts. He was also experiencing a number of physical problems that were causing him pain, restrictions of movement. He was utilising, in my view, an excessive number of benzodiazepine medications and other tranquillising medications, and put that cocktail together, in my view that would have been significant in contributing to a major depressive disorder. A major depressive disorder is often associated with individuals who also experience post-traumatic stress disorder, but it’s very difficult to be categorical in regard to whether the post-traumatic stress disorder has been a substantial contributor of the major depressive disorder. In regard to his alcohol use disorder. There’s no question in my mind that Mr Howard has a significant problem with alcohol, has had in the past a clear and convincing evidence of alcohol to a marked degree…… I disagree with Dr Dinnen …. These are separate diagnoses, quite discrete. Certainly they can be often be found in individuals with post-dramatic stress disorder.…… if you look at the diagnostic criteria for PTSD , alcohol doesn’t get a mention. Depression doesn’t get mentioned. PTSD historically was under the broad umbrella of an anxiety disorder…[12][12] Transcript 11/09/15 pp.105-108. In his report of 23 February 2015[13], Dr Smith stated:There is no clear and convincing clinical evidence that his alcohol utilisation has arisen directly from his Post-Traumatic Stress Disorder. Certainly it is my experience that patients who suffer from a Post-Traumatic Stress Disorder or a Major Depressive Disorder often resort to the utilisation of alcohol as a method of coping with their symptoms. It should also be noted that Mr Howard was engaged in the hotel business and given his close proximity to alcohol would not be unusual to experience such an occupational hazard as drinking excessively.[13] Exhibit R4.Report of Dr Tayar, Local Medical Officer

Decision

Reasons for decision

Mr Howard is entitled to the extreme disablement adjustment in accordance with section 22 of the Act.G. CONCLUSION The decision of the Repatriation Commission made 30 August 2013 rejecting Mr Howard’s application for an increase in his disability pension will be set aside. In substitution it will be decided that Mr Howard is entitled to receive the extreme disablement adjustment to the General Rate of pension in accordance with section 22 of the Veterans’ Entitlements’ Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

In Smith v Repatriation Commission,[4] the Full Court said in relation to section 24 that: . Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Second, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (not for other reasons) from continuing earlier remunerative work. Third, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity. The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2)… (emphasis added)[5]. [4] [2014] FCAFC 53[5] Ibid at [48] In Repatriation Commission v Richmond,[6] the Full Court of the Federal Court warned that the application of subsection 24(1)(c) "is not to be ascertained by construing the words in the authorities as if they were the words of the statute". However, with this in mind, the issues set out in Smith v Repatriation Commission are appropriate to determine the issues in this matter.[6] [2014] FCAFC 124 [50]. With regard to the “alone” test, in an interpretation approved on appeal by the Full Court, the Federal Court stated in Richmond v Repatriation Commission:[7]... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied. D.1.1 Was Mr Howard prevented, by war-caused incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work?[7] [2014] FCA 272 [108]; see also Repatriation Commission v Richmond [2014] FCAFC 124 [65].What was Mr Howard's “earlier remunerative work”? On the basis of the evidence of Mr Howard I am satisfied that the remunerative work he was undertaking was that of the licensee/manager of a hotel, which included associated clerical work. Counsel for the Commission argued that Mr Howard never managed the hotel, as, although he had been the licensee for many years, the management tasks had always been carried out by others. Counsel relied on Mr Howard’s evidence that the hotel was initially purchased as a means of enabling Mr Howard to care for his two young children. I was also referred to Mr Howard’s evidence that since 1995 he performed very limited tasks in relation to the management of the hotel’s business. Whilst I accept that in later years Mr Howard’s role was extremely limited, I am satisfied that with the assistance of his brother-in-law, from the time the hotel was purchased he did undertake an active role in management. I accept Mr Howard’s evidence that initially he was engaged in both front-of-house and back-of-house work, including clerical work in relation to payment of wages, ordering of stock and work in the bar. I am satisfied that Mr Howard continued this work until around 1995. What is the extent of Mr Howard's accepted war-caused incapacity?