Hyde and Repatriation Commission (Veterans' entitlements)
[2025] ARTA 1627
•2 September 2025
Hyde and Repatriation Commission (Veterans' entitlements) [2025] ARTA 1627 (2 September 2025)
Applicant:Shane Hyde
Respondent: Repatriation Commission
Tribunal Number: 2024/1767
Tribunal:Senior Member Thomae
Place:Brisbane
Date:2 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled:
(a) from 8 November 2020 to 29 November 2024, pursuant to s 25 of the Veterans’ Entitlement Act 1986 (Cth) (VEA), the temporary payment of the special rate of the disability pension.
(b) from 30 November 2024, pursuant to s 23 of the VEA, the intermediate rate of the disability pension.
................................[SGD]...........................
Statement made on 02 September 2025 at 9:09am
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate of pension – incapacity from war or war-caused disease – temporary or permanent incapacity - prevented from being able to continue to undertake remunerative work that he was undertaking – conflicting medical evidence on incapacity to work - alone test - loss of salary or wages – decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission [1986] FCA 397
Chambers v Repatriation Commission (1995) 55 FCR 9
Fox and Repatriation Commission (1997) 45 ALD 317
Leigh v Repatriation Commission (2006) 90 ALD 301
McDonald v Director General of Social Security (1984) 6 ALD 6
Pollock v Wellington (1996) 15 WAR 370
Re Dawson and Repatriation Commission [1999] AATA 895
Re Doyle and Repatriation Commission (1986) ALD 320
Re Guest and Repatriation Commission (1995) ALD 102
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272
Statement of Reasons
INTRODUCTION
The applicant, Mr Hyde (Mr Hyde) is a veteran who served in the Royal Australian Navy (RAN) for a total of 20 years from November 1977 to November 1986 and then April 1998 to April 1999.
He seeks relief from the Tribunal in respect to a decision of the Veterans’ Review Board (VRB) that Mr Hyde was not entitled to the disability pension at the ‘Intermediate Rate’ or ‘Special Rate’ pursuant to ss 23 and 24 of the Veterans’ Entitlement Act 1986 (Cth) (VEA).
Mr Hyde did not give evidence at the hearing. Dr Shaikh, consultant psychiatrist, gave evidence.
Mr Michael Anderson, Harvey Bay RSL appeared for Mr Hyde. The Commission was represented by Mr Jamie Watts, Australian Government Solicitor.
The Tribunal admitted into evidence the Joint Hearing Book as exhibit R1.
BACKGROUND
Mr Hyde was born in March 1960, and is now aged 65 years.
On 3 February 2021, Mr Hyde lodged a claim with the Commission for the conditions of ‘persistent depressive disorder, hypertension and erectile dysfunction’ (the Initial Claim).[1]
[1]Exhibit R1.R1.9.
On 6 May 2021, a delegate of the Commission denied liability for the Initial Claim (the Liability Determination).[2]
[2] Exhibit R1.R1.11.
On 30 March 2022, Mr Hyde applied for a review of the Liability Determination.[3]
[3] Exhibit R1.R1.13.
On 28 October 2022, the VRB:[4]
(a)Set aside the Liability Determination and substituted its decision that Mr Hyde’s conditions of ‘persistent depressive disorder, hypertension and erectile dysfunction’ were defence-caused.
(b)Remitted the matter to the Commission for assessment of the rate at which Mr Hyde’s pension was to be paid.
[4] Exhibit R1.R1.16.
On 6 June 2023, a delegate of the Commission determined that Mr Hyde was entitled to a rate of pension at 100% of the ‘General Rate’ with effect from 30 September 2021, with a degree of incapacity of 100% and a lifestyle rating of 4 (the Pension Determination).[5]
[5] Exhibit R1.R1.19.
On 7 June 2023, Mr Hyde requested a review of the Pension Determination.[6]
[6] Exhibit R1.R1.20.
On 19 February 2024, the VRB affirmed the Pension Determination (the Reviewable Decision).[7]
[7] Exhibit R1.R1.2.
On 6 March 2024, Mr Hyde, made an application for review[8] to the General Division of the Administrative Appeals Tribunal (the AAT)[9] of the Reviewable Decision.
[8] Exhibit R1.R1.1.
[9] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
ISSUES
The issue before the Tribunal is whether Mr Hyde is entitled for payment of the disability pension at the ‘Intermediate Rate’ or the ‘Special Rate’ under the VEA.
Mr Hyde contends that he is entitled to the ‘Special Rate’ pension at the earliest date possible during the ‘assessment period’.
The Commission concedes that Mr Hyde is entitled to the ‘Temporary Special Rate’ payment of the disability pension, pursuant to s 25 of the VEA from 8 November 2020 to 29 November 2024 and then contends that Mr Hyde should return to 100% of the ‘General Rate’ of the disability pension from 30 November 2024.
The issues for the Tribunal to determine are whether on and from 30 November 2024:[10]
(a)Mr Hyde’s incapacity is as a result of his VEA-accepted condition of ‘persistent depressive disorder’ (the VEA-accepted Condition) is of such a nature alone[11] to render Mr Hyde incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)).
(b)Mr Hyde, by reason of his incapacity from his VEA-accepted Condition alone was prevented from continuing to undertake the remunerative work he was undertaking and is, by reason thereof, suffering a loss of salary or wages that he would not have suffered if he were free of that incapacity (s 24(1)(c)).
(c)Alternatively, if Mr Hyde does not satisfy the requirements of ss 24(1)(b) and 24(1)(c), whether he satisfies the requirements of ss 23(1)(b) and 23(1)(c).
[10] Respondent’s Amended Statement of Facts, Issues and Contentions (ASFIC) at [7].
[11] Described as the alone test.
LEGISLATIVE SCHEME
Part 2 of the VEA deals with pensions, other than service pensions, for veterans and their dependents. Section 15 of the VEA allows a veteran to make a claim for an increase in pension.
Section 19 of the VEA provides the way in which a claim for a pension is to be determined. Relevantly, for the present application for review s 19(5B) of the VEA mandates that ss 23 (‘Intermediate Rate’), 24 (‘Special Rate’) or 25 (‘Temporary Payment at Special Rate’) applies in assessing Mr Hyde’s eligibility for a pension.
When determining an application for an increase in the rate of pension (in this case from the ‘General Rate’ to the ‘Intermediate Rate’ or ‘Special Rate’), a veteran’s entitlement is determined in respect of any circumstances within the ‘assessment period’.
The assessment period starts on the day of the application for an increase in the pension was received until the date of the decision of the Tribunal.[12]
[12] See section 19(9) of the VEA; Richmond v Repatriation Commission [2014] FCA 272 at [107]
The relevant parts of ss 23 and 24 of the VEA for determination state:
Section 23 Intermediate rate of pension
(1) The section applies to a veteran if:
…
(b)the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(d)section 24 or 25 does not apply to the veteran.
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i)if 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;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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.
Section 24 Special rate of pension
(1) The section applies to a veteran if:
…
(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 her 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 her or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than her 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
…
(h)section 25 does not apply to the veteran.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on her or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than her or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
Section 25 of the VEA provides that where a ‘veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies’ then 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’.
The salient difference in s 25 of the VEA is the veterans’ incapacity is temporary rather than permanent as required under s 24 of the VEA.
Section 28 of the VEA provides that in determining for the purposes of ss 23(1)(b) or 24(1)(b) of the VEA, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, then regard must be had to the following matters (only):
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
The reference in s 24 of the VEA to “remunerative work which the member was undertaking” is not to any particular job but should be read as a reference to the type of work the member previously undertook.[13]
[13] Banovich v Repatriation Commission [1986] FCA 397 at [23].
Section 120 of the VEA provides the standard of proof required; s 120(4) of the VEA requires that a veteran’s entitlement to an increased pension be decided on the decision-makers reasonable satisfaction.[14]
EVIDENCE
[14] Repatriation Commission v Smith (1987) 15 FCR 327 at [161].
Non-contentious Material Facts
It is not contentious, and the Tribunal is reasonably satisfied, that:
(a)Mr Hyde served in the RAN for 20 years.
(b)After his service in the RAN, Mr Hyde worked mustering cattle for about 12 months and then as a carpenter restoring historic buildings for 12 months.
(c)Mr Hyde then served in the merchant navy until he ceased work on 8 November 2020.
(d)Mr Hyde made a valid claim under s 15 of the VEA for an increased rate of pension (ss 23(1)(aa) and 24(1)(aa)).
(e)Mr Hyde was not yet 65 when he made the claim (ss 23(1)(aab) and 24(1)(aab)).
(f)Mr Hyde’s degree of incapacity from his ‘war-caused disease’ was at least 70% (ss 23(1)(a)(i) and 24(1)(a)(ii)).
(g)The ‘assessment period’ under the VEA is from 3 February 2021 until the date of the Tribunal’s decision (s 19(5C)).
(h)Mr Hyde has several VEA-accepted medical conditions:[15]
[15] Exhibit R1.R1.3.
(i)Persistent depressive disorder.
(ii)Hypertension.
(iii)Erectile dysfunction.
(iv)Sensorineural hearing loss.
(v)Solar keratosis.
(vi)Tinnitus.
(i)Mr Hyde’s non VEA accepted condition of ‘alcohol use disorder (in remission)’ does not affect his eligibility under ss 23, 24 or 25 of the VEA.
(j)Mr Hyde satisfied the eligibility criteria for ‘Special Rate’ disability pension from 8 November 2020 until 29 November 2024.
Mr Hyde’s Evidence
Mr Hyde provided written statements. Only the second is relevant to the matter before the Tribunal. It lists the duties and responsibilities Mr Hyde has as ‘3rd Mate’ on a merchant vessel, including: [16]
·Navigational watch – responsible for maintaining situational awareness and providing the Master and Chief Engineer with regular updates on the ship’s status.
·Maintenance of Safety and Survival Equipment.
·Berthing and Departure – supervising members of the crew, following instructions from the Master regarding the passing of berthing lines to and from the dock.
·Cargo Operations and Ship Reporting – responsible for overseeing the loading and unloading operations during ‘watch’ (shift) periods, including monitoring cargo hatches, security of ship and gangway and movement of personnel boarding and leaving the ship.
·Additional Duties – when off watch, included maintenance of firefighting gear and survival appliances, daily equipment checks and maintenance reports.
[16] Exhibit R1.A4
Mr Hyde states that the ‘demanding nature of the job left me feeling constantly fatigued, anxious and, at times irritable’ and navigation responsibilities added additional stress. He says:
Given the high level of stress associated with these duties and the impact it had on my mental and physical well-being, my psychiatrist recommended that I retire early from my position as 3rd Mate. The combination of demanding work hours, constant vigilance, and the overall pressure of the job ultimately led to my decision to prioritise my health and well-being.
Mr Hyde did not give evidence at the hearing, the reason his advocate provided was that he was not mentally well enough to give evidence. No medical evidence of his inability to give evidence was proffered, or objection taken.
The Tribunal is satisfied nothing turns on the non-appearance of Mr Hyde at the hearing. His evidence is accepted on face value and is not disputed in any material way by the Commission.
Medical Evidence
Dr Wasim Shaikh
Dr Wasim Shaikh (Dr Shaikh), a psychiatrist, in a written report, dated 6 January 2025, relevantly states:[17]
Mr Hyde now aged 64 presents with a longstanding history of major depressive disorder. This may also be described as a persistent depressive disorder referring to the same condition but explaining a multidecade history of emotional distress. There has been in the past 30 plus years episodes of deterioration and recovery. There has been an association the presence of alcohol dependency with a two-decade long period of abstinence before a relapse and more recently a three year period of abstinence.
…
Based on available information, I would diagnose Mr Hyde as suffering major depressive disorder alongside alcohol dependence.
…
When the history of his service and his vocation/trade is considered, it does appear that Mr Hyde has since November 2020 been partially incapacitated. Certainly, in the initial period he would have been incapacitated from working more than eight hours a week. In recent years, however, his ability to engage reasonably well from a social perspective and his mental health symptoms being in a residual state would mean I would struggle to justify him to be incapacitated from working more than eight hours a week. In all probability, I would expect Mr Hyde to be capable of working outside the marine industry for more than eight hours a week.
…
It is my opinion that whilst there are other issues with his health, the depressive disorder was the one that prevented him from employment.
[17] Exhibit R1.R.2.4.
Dr Shaikh provided a supplementary report, dated 25 March 2025, where he relevantly states:[18]
15) Do you agree with Dr Fraser’s that opinion that Mr Hyde is at ‘high risk’ of relapsing if he were to undertake work outside the marine industry for aggregated periods of more than 8 hours a week? If so, please detail why?
I disagree with the opinion of Dr Fraser in this regard. I note, as stated by Dr Fraser, that Mr Hyde contacted him in May 2020 to discuss severe emotional distress, and Dr Fraser then recommended a hospital admission. It is obvious, as discussed by Dr Fraser that it was Mr Hyde’s psychiatric condition, which precipitated him leaving work in May 2020.
It has now been almost five years since this event. As noted by Dr Fraser, there has been improvement in Mr Hyde’s mental health. I have discussed in my report, his abilities from a social perspective, and his symptoms being in a residual state. Whilst return to work in the marine industry could be risky, I do not believe it is justified that he would be at high risk of relapsing, if he worked outside the marine industry for more than eight hours per week.
…16) In your opinion, could Mr Hyde return to remunerative work outside the marine industry for aggregated periods of more than 8 hours a week now?
Yes, with my understanding of his social function, and his residual symptomatology, as discussed in the report, I believe Mr Hyde would have capacity to work for more than eight hours per week.
Mr Hyde noted during the assessment that he had no issues socialising, primarily with his wife’s friends. He would attend social events. He would go to the movies. He would go for coffee and meals. Whilst he discussed poor concentration, he could focus reasonably well for the assessment. He was capable of travelling, including long distance travel to Dr Fraser’s rooms.
I see no barrier to Mr Hyde engaging in work, for example three hours per day, four to five days per week.
[18] Exhibit R1.R3 at ST4.
Dr Shaikh provided a further supplementary report, dated 26 May 2025, where he relevantly states:[19]
[19] Exhibit R1.R4 at ST6.
18. In your reports, dated 6 January 2025 and 25 March 2025, you have noted that Mr Hyde would be capable of working ‘outside the marine industry’ for more than eight hours a week. Please clarify:
a. Why is Mr Hyde only capable of undertaking remunerative work ‘outside the marine industry’?
I have discussed Mr Hyde’s history in my initial report of 06.01.2025. The history of Mr Hyde’s symptoms suggests emotional distress. His cessation of work in November 2020, and symptomatology thereafter was due to stressors he experienced/perceived, whilst in the Navy. Even in the 90s, there is evidence to suggest deterioration in Mr Hyde’s mental health secondary to stressors in service.
Mr Hyde’s history suggested improvement in his mental health in the months and years preceding the assessment, and much of this likely had to do with his separation from the Merchant Navy.
My comment in relation to Mr Hyde being capable of undertaking remunerative work only “outside the marine industry” relates to the assessment reflecting that involvement in the marine industry would likely bring about deterioration in his mental health, particularly after then noted improvements in preceding years. The deterioration in mental health would bring about risks.
b. Would Mr Hyde be capable of working in the marine industry if he was not working in a similar role to the role he was in immediately before ceasing employment on 8 November 2020, namely as a 3rd mate on a large vessel?
I do not believe the restrictions noted related only to his role as a 3rd mate on a large vessel. With Mr Hyde’s reported history of symptom, the circumstances of cessation of work in 2020 and residual symptoms noted at the time of assessment all suggested that the restrictions were likely to be applicable in terms of him working in the marine industry per se – the above discussed risks would be applicable.
19. In your supplementary report, dated 25 March 2025 you have stated that you see no barrier to Mr Hyde engaging in work, for example three hours per day, four to five days per week. To the extent you are able within your expertise:
a. Is Mr Hyde able to undertake remunerative work more than 20 hours per week (or more than on a part time basis)?
With Mr Hyde’s then reported symptomatology, and my understanding of his psychiatric condition, I believed Mr Hyde did have a capacity to work for more than 8 hours per week, perhaps for approximately 12 to 15 hours per week. Mr Hyde had then not recently been in employment, and it is difficult to ascertain if he would have the capacity to undertake remunerative work for more than 20 hours per week. On the basis of information available to me, however, I would have expected that “in time” his noted workability would increase and would likely be for more than 20 hours per week, but this would depend on rehabilitative supports and success during initial return to work.
b. If he cannot, is he rendered incapable of undertaking remunerative work otherwise than on a part-time or intermittent basis as a result of his accepted VEA persistent depressive disorder alone? Please identify the limitations or restrictions on Mr Hyde’s ability to undertake such remunerative work and the cause of each such limitation or restriction.
The above notations are based on available information, and on the balance of probability. I believe it is more than reasonable to state that as a result of the accepted VEA persistent depressive disorder, Mr Hyde is rendered incapacitated in terms of remunerative work other than on a part-time or intermittent basis. The reason for the above is the ongoing and residual presence of emotional complaints, discussed in my previous report. These included irritability, ruminative thought patterns, disturbances in sleep, emotional dysregulation, and impaired cognition.
c. Are there any other factors, such as Mr Hyde’s time out of the workforce, increasing age and the impacts thereof, or Mr Hyde’s own personal choices that may contribute to prevent Mr Hyde from being able to undertake remunerative work more than on a part-time basis?
In answering the above question, the reference to ‘remunerative work’ does not refer to a specific job, but rather:
i. Mr Hyde’s vocation or trade and professional skills, qualifications and experience, and
ii. the work that he, with those skills, qualifications and experience, might reasonably undertake.
Mr Hyde was aged 64 at the time of assessment. He had not worked for over four years. The increasing age and impacts of the same, as well as time away from work were likely a co-contributor to his lack of motivation in relation to returning to work. I still believe that the above notation applied to his VEA accepted psychiatric condition.
20. Having regard to the material at Tabs 13, 39 and 70-71, detailing Mr Hyde’s skills, qualifications and experience, to the extent that you are able to answer within your expertise, could Mr Hyde undertake:
a. administrative or clerical work
b. work involving the managing of others, including a team
c. manual labour?
Mr Hyde should be capable of undertaking basic administration work. He should be capable of undertaking manual labour work, and is not from an emotional perspective, restricted in the same. I would have concerns about him being involved in managing of others, but he could likely work in a team environment.
Dr Shaikh gave evidence at the hearing. He stated that his qualifications were as a psychiatrist and also as an expert in medicolegal matters.
In examination in chief:
(a)Dr Shaikh was asked if he had experience with people who had been out of the workforce due to mental health conditions. Dr Shaikh stated that on several occasions he had provided treatment, recovery and rehabilitation, or part of a holistic team to get them back to work.
(b)Dr Shaikh stated that returning to work had generally a positive impact on people with mental health conditions and considered that applied to Mr Hyde.
(c)Dr Shaikh opined that on his examination of Mr Hyde and his symptoms that Mr Hyde could work for 12-15 hours per week.
(d)Dr Shaikh stated that having symptoms and treatment for mental health did not preclude Mr Hyde from returning to work.
(e)Dr Shaikh, when asked about Dr Fraser’s opinion that Mr Hyde had a high risk of relapse if he returned to work, opined that the risk of relapse was affected by a history of relapse when returning to work. Dr Shaikh considered that because Mr Hyde had returned to work previously when under the care of Dr Fraser was supportive of Dr Shaikh’s opinion of the low risk of relapse.
(f)Dr Shaikh was asked about the answer in his third report as to the question on Mr Hyde’s time out of the workforce and age. Dr Shaikh opined that as Mr Hyde was now 65 and that would be the retirement age in the normal course and his 4 years out of work affected Mr Hyde’s motivation to return to work.
In cross-examination:
(a)Dr Shaikh conceded he did not have occupational therapy or rehabilitation qualifications.
(b)Dr Shaikh agreed that Mr Hyde could not return to his role as a 3rd mate or similar employment but believed that Mr Hyde could undertake administrative or labour manual type work.
(c)Dr Shaikh was asked what impact might changing roles might have on Mr Hyde’s mental health. Dr Shaikh said that Mr Hyde, given that he had moved from the RAN to the merchant navy and had the support of his treating psychiatrist and family, would be able to change roles without a negative impact on his mental health.
In re-examination, Dr Shaikh was asked about whether Mr Hyde was capable of another role working with stock that he undertook previously or carpentry that Mr Hyde carried out as a hobby. Dr Shaikh opined that Mr Hyde was particularly suited to tool-based work such as carpentry.
Dr Clive Fraser
Dr Clive Fraser (Dr Fraser), Mr Hyde’s treating psychiatrist since 2015, in an incapacity assessment dated 17 February 2021, opined that Mr Hyde was permanently incapacitated for work because of his condition of major depression with a start date of 26 May 2020 and ‘it would be detrimental for Mr Hyde to work in an occupation that detailed significant responsibility’.[20]
[20] Exhibit R1.R1.10.
In a letter to the Commission, dated 5 September 2023, Dr Fraser states that Mr Hyde:
in May 2020 he became very severely depressed and suicidal and he requested that I organise his admission to hospital which was subsequently arranged’ and Mr Hyde ‘ceased working in May 2020 due to his Major Depressive Disorder … He has not been able to return to work since then:[21]
[21] Exhibit R1.R1.22.
In a letter to Mr Hyde’s RSL advocate, dated 13 June 2024, Dr Fraser states that Mr Hyde ‘on 23/05/2020 I advised Mr Hyde to cease working due to his mental health issues’.[22]
[22] Exhibit R1.A2.
In a letter to the Commission, dated 20 February 2025, Dr Fraser states that: [23]
I wish to make it very clear that it was Mr Hyde’s psychiatric condition that precipitated him leaving work in May 2020.
Whilst Mr Hyde’s mental health has subsequently improved I do regard him as being at high risk of relapse in the event that he sought employment and I have therefore recommended to him that he not return to work on psychiatric grounds.
[23] Exhibit R1.A5.
Dr Fraser did not give evidence at the hearing.
CONTENTIONS
Mr Hyde’s Contentions
Mr Hyde contends that he should be entitled to ‘Special Rate’ on an ongoing basis as his VEA-accepted Condition alone prevents him from remunerative work and after leaving the workplace he has lost income that he was otherwise receiving in employment.[24]
[24] Applicant’s Statement of Facts, Issues and Contentions (SFIC) at [31]-[32].
He relies on the evidence of Dr Fraser as to his incapacity to work because of his VEA-Accepted Condition.
Commission’s Contentions
The Commission accepts that: [25]
(a)Mr Hyde had not yet turned 65 when the claim was made, and his degree of incapacity has been determined as at least 70%; and
(b)Mr Hyde satisfies s 25 of the VEA and is entitled to temporary payment of the ‘Special Rate’ of pension from 8 November 2020 to 29 November 2024.
[25] ASFIC at [53].
The Commission contends that:
(a)Mr Hyde’s incapacity from his VEA-accepted condition is temporary in nature, citing McDonald v Director General of Social Security (1996) 6 ALD 6 for the proposition that the distinction between ‘temporary’ and ‘permanent incapacity’ is a question of fact[26] and relies on Dr Shaikh’s opinion that that Mr Hyde has capacity for remunerative work for more than 8 hours per week after 29 November 2024 because of his symptoms improving and the low risk of relapse by returning to work.[27]
(b)Given the ‘permanence that attached to payment of a pension at the special rate, the Tribunal ought not to award such a payment when there is evidence to support that a veteran might be capable of entering the workforce after rehabilitative intervention or with further ongoing psychiatric treatment’ (citing Re Dawson and Repatriation Commission [1999] AATA 895).[28]
(c)As to the type of remunerative work Mr Hyde is capable of, the Commission contends that s 28 of the VEA provides the statutory basis for what the decision-maker ‘must take into account the kinds of work which the applicant’s background and experience have equipped the applicant to do’ (citing Re Doyle and Repatriation Commission (1986) 11 ALD 320 and Chambers v Repatriation Commission (1995) 55 FCR 9).
(d)Mr Hyde could perform sedentary and manual labour roles as the ‘applicant was trained and undertook a number of courses while in the Navy and regularly performed a number of different tasks while working as a 3rd Mate…that a person with the applicant’s skills, qualifications and experience might reasonably undertake navigation, auditing, managing, manual labour, administrative and clerical roles’.[29]
(e)Mr Hyde does not satisfy s 23(1)(c) of the VEA for a pension at the Intermediate Rate after 29 November 2024 because Dr Shaikh’s opinion that Mr Hyde’s ‘increasing age and impacts of the same, as well as time away from work were likely a co-contributor to his lack of motivation in relation to returning to work’, such that Mr Hyde cannot satisfy the alone requirement in the section.
CONSIDERATION
[26] ASFIC at [39].
[27] ASFIC at [57], [60]-[65].
[28] ASFIC at [44]-46].
[29] ASFIC at [50]-[52].
Special Rate – Temporary or Permanent Incapacitation
The Tribunal is satisfied on the basis of the evidence before it that Mr Hyde is entitled to the ‘Special Rate’ of pension, pursuant to s 25 of the VEA, from 8 November 2020 to 29 November 2024 because he satisfies the statutory requirements of being under 65 at the time of his claim, his degree of incapacity was of at least 70% and the unequivocal medical evidence of Dr Fraser and Dr Shaikh that he was unable to work more than 8 hours a week during that period because of his VEA-accepted Condition alone.
In coming to that finding, the Tribunal accepts that Mr Hyde was not totally permanently incapacitated after 29 November 2024 pursuant to s 24 of the VEA because:
(a)The Tribunal is required to determine whether Mr Hyde’s incapacity is temporary or permanent as a question of fact.[30]
(b)The medical evidence of Dr Fraser and Dr Shaikh was that Mr Hyde’s mental health had improved with treatment and the Tribunal accepts that the risk of relapse from working was not as Dr Fraser opines but rather prefers that of Dr Shaikh that there was a low risk of relapse.
(c)Dr Shaikh’s opinion of the risk of relapse was preferred as it was based on a nuanced view of the types of work Mr Hyde could undertake in the future and the protective nature that employment would provide as well as his ongoing treatment and support of his family.
(d)Further, Dr Shaikh relied on the fact that Mr Hyde had previously returned to work in the merchant navy after My Hyde’s mental health had temporarily incapacitated him.
(e)Both Dr Shaikh and Dr Fraser agreed that Mr Hyde was not capable of working in his previous role onboard merchant ships, he simply could not deal with the stress, environmental conditions and work hours with his incapacity.
(f)The Tribunal was satisfied that Mr Hyde could work for more than 8 hours per week as a result of the ongoing treatment of his VEA-accepted Condition in a role that did not require him to go to sea on a ship, preferring the opinion of Dr Shaikh that Mr Hyde was capable of working 12-15 hours per week in sedentary administrative roles or light labour.
[30] McDonald at 13.
Intermediate Rate – Temporary or Permanent Incapacitation
There is no issue before the Tribunal that Mr Hyde satisfies the elements of s 23 apart from ss 23(1)(b) and 23(1)(c) of the VEA. Mr Hyde made a claim for an increase in the pension he was receiving. Under s 23(1)(aab) he had not turned 65 years of age when he made the claim. Under s 23(1)(a) the degree of Mr Hyde’s incapacity was assessed at greater than 70%.
The Commission, without expressly conceding the point, accepts that Mr Hyde is incapacitated from working more than 20 hours per week because the evidence of Dr Shaikh was clear that Mr Hyde was incapable of working more than 3 hours per day for 4-5 days per week, or as Dr Shaikh opined 12-15 hours per week.
The Tribunal accepts that Dr Shaikh was qualified to opine on how many hours per week that Mr Hyde could work based on his assessment of his VEA-accepted Condition and its impact on his capacity to work.
The Tribunal is reasonably satisfied that Mr Hyde is not capable of undertaking any remunerative work for more than 20 hours per week because the Tribunal accepts the evidence of Dr Shaikh in this regard.
In making that finding the Tribunal prefers the evidence of Dr Shaikh to Dr Fraser for the same reasons as above in respect to the findings on s 25 of the VEA.
Dr Shaikh in the totality of his evidence makes no qualification to his opinion that such incapacity is caused by Mr Hyde’s VEA-accepted Condition alone, rather the Tribunal is satisfied that the clear inference is that Mr Hyde is incapacitated from working more than 20 hours per week by his VEA-accepted condition alone as required by s 23(1)(b) of the VEA.
As to the type of work Mr Hyde is capable of performing 12-15 hours per week, the Tribunal is reasonably satisfied that Mr Hyde has the qualifications, experience and skills to undertake sedentary administrative roles and light manual labour roles.
The Tribunal makes this finding despite the lack of expert evidence because it is satisfied that Mr Hyde’s long experience in the RAN and merchant navy, as well as the uncontested evidence of his prior work experience, demonstrates that it is reasonably open to the Tribunal to conclude he has the necessary qualifications, skills and experience to undertake these limited roles.
The remaining issue for determination by the Tribunal is whether Mr Hyde satisfies the alone test in s 23(1)(c) of the VEA. The wording in ss 23(1)(c) and 24(1)(c) of the VEA are in identical language.
In Repatriation Commission v Hendy [ 2002] FCAFC 424, Whitlam, Emmett and Stone JJ at [37] considering the alone test under s 24(1)(c) of the VEA stated:
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.
(underlining and emphasis added)
The Commission relies on the further supplementary report of Dr Shaikh for its contention that Mr Hyde does not satisfy the alone test under s 23 of the VEA for the ‘Intermediate Rate’ of pension.
It is not contentious that Mr Hyde ceased working in November 2020 and has not worked since. Mr Hyde has been out of the work force for almost 5 years and Mr Hyde’s age and the lack of recent work experience is a relevant consideration for the Tribunal.
Mr Hyde was 64 years at the commencement of the assessment period. He is now 65 years of age.
The Tribunal notes that the question posed by the Commission in its instructions to Dr Shaikh, dated 14 May 2025, was a leading question that asked Dr Shaikh to opine about a proposition (other factors), namely:[31]
Are there any other factors, such as Mr Hyde’s time out of the workforce, increasing age and the impacts thereof, or Mr Hyde’s own personal choices that may contribute to prevent Mr Hyde from being able to undertake remunerative work more than on a part-time basis.
[31] Exhibit R1.R4, pp 459-463.
Dr Shaikh opines in response that:
Mr Hyde was aged 64 at the time of assessment. He had not worked for over four years. The increasing age and impacts of the same, as well as time away from work were likely a co-contributor to his lack of motivation in relation to returning to work. I still believe that the above notation applied to his VEA accepted psychiatric condition.
At the hearing Dr Shaikh maintained that opinion about the other factors. In doing so, Dr Shaikh did not give evidence that his opinion was based on any questions he had posed to Mr Hyde, rather an opinion inferred from the facts that Mr Hyde was now 65 and had not been in work for 4 years.
In determining the weight given to Dr Shaikh’s opinion about the other factors the Tribunal relies on the principles as stated in Pollock v Wellington (1996) 15 WAR 370, where Anderson J, at 3, states:
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845-846.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.
The Tribunal is not satisfied the facts that Dr Shaikh relies in making his opinion about the other factors, particularly Mr Hyde’s motivation in returning to work, were based on admissible evidence.
Dr Shaikh conceded in cross-examination that he was not qualified in occupational therapy and rehabilitation. The Tribunal finds that Dr Shaikh is not qualified as an occupational physician either, as Dr Shaikh did not include such qualification when asked what his qualifications were.
Further the opinion on personal choices and motivation of Mr Hyde are not specific questions that Dr Shaikh records as being part of the examination of Mr Hyde.
As such, the Tribunal gives little weight to this question-and-answer exercise between the Commission and Dr Shaikh because it presupposes that Dr Shaikh can offer an expert opinion, beyond his medical expertise as a psychiatrist, namely an opinion on the effect of time out of the workforce on Mr Hyde’s employability, the types of work Mr Hyde was suited to for the hours Dr Shaikh opines, his increasing age and impacts arising in a way that say an occupational physician would.
The Tribunal has already determined, and the Commission concedes, that Mr Hyde was entitled to temporary special rate (s 25) from the time he ceased working in November 2020 to November 2024, such period being the one the Commission contends disqualifies Mr Hyde from the ‘Intermediate Rate’ of disability pension.
The Tribunal is reasonably satisfied that Mr Hyde’s age and time out of the work force are not barriers to him engaging in remunerative work, namely sedentary administrative or light labour roles.
As Dr Shaikh opines, he considers that Mr Hyde undertaking such roles for the hours that Dr Shaikh considers him capable of, would have a beneficial impact on Mr Hyde’s mental health and as Dr Shaikh states Mr Hyde has previously demonstrated the capability to return to work after periods of incapacity due to his mental health.
There is no probative evidence before the Tribunal that anything other than Mr Hyde’s VEA-accepted Condition prevents him from undertaking remunerative work as required by s 23 of the VEA.
The Tribunal is reasonably satisfied based on Mr Hyde’s evidence that he has suffered a loss of salary, wages or earning that he would not be suffering if he were free of his VEA-accepted Condition.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the disability pension:
(a)from to 8 November 2020 to 29 November 2024, pursuant to s 25 of the VEA, at the temporary payment at special rate; and
(b)from 30 November 2024, pursuant to s 23 of the VEA, at the intermediate rate.
Date(s) of hearing: 17 July 2025 Date final submissions received: 17 July 2025 Representation for the Applicant: Mr Anderson, Harvey Bay RSL Solicitors for the Respondent: Mr Watts, Australian Government Solicitor
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