JNGS and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1237

JNGS and Repatriation Commission (Veterans' entitlements) [2017] AATA 1237 (1 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/4538
Re:JNGS
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:1 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – claim for special rate – applicant in receipt of disability pension since 1974 – service in Vietnam for 12 months between 1968 and 1969 – meningo-encephalitis contracted in 1975 – certified as totally disabled 1976 – applicant received defined benefit pension – continuing service in the reserves until 1982 – subsequent training as a disability carer – employment as disability care worker on a casual basis – hours of employment varied up to a maximum of 26 hours per week – applicant suffered two physical assaults with bilateral shoulder injuries in course of disability care work – war-caused posttraumatic stress disorder diagnosed following assaults – alone test not satisfied – decision affirmed
VETERANS’ AFFAIRS – claim for acceptance of conditions as war-caused - sleep apnoea - gastro oesophageal reflux disease - no reasonable hypothesis connecting either condition to service - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 37
Veterans’ Entitlement Act 1986 (Cth) ss 9, 22, 24, 28, 120, 120A
Cases
Beezly v Repatriation Commission (2015) 68 AAR 23
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Husband v Repatriation Commission (2000) 60 ALD 717
Owen and Repatriation Commission (1995) 59 FCR 93
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Watkins (2015) 228 FCR 573
Richmond v Repatriation Commission (2014) 140 ALD 380
Summers v Repatriation Commission (2015) 230 FCR 197
Secondary Materials
Statement of Principles Instrument No 41 of 2013 Sleep apnoea
Statement of Principles Instrument No 65 of 2013 Gastro-oesophageal reflux disease
REASONS FOR DECISION
Miss E A Shanahan, Member
1 August 2017

The veteran, formerly known as CGLQ and now known as JNGS, has been paid a disability pension by the Department of Veterans’ Affairs (DVA) at 100 per cent of the general rate since 2 March 1976. The Repatriation Commission (the Commission) had accepted that the medical conditions, then named Anxiety State with functional dyspepsia and Seborrhoea Capitis, were war-caused and arose from the veteran’s service in Vietnam from 25 June 1968 to 25 June 1969.
JNGS lodged a claim on 7 November 2014 for an increase in pension and the acceptance as war-caused of a further 10 conditions. The medical conditions forming the basis of this claim included spondylosis of the lumbar, thoracic and cervical spine with L4/5 spondylolisthesis, osteoarthritis of the right ankle and knee, hypertension, diabetes, morbid obesity, post-traumatic stress disorder (PTSD), Achilles tendinopathy, gastro‑oesophageal reflux disease (GORD) and sleep apnoea.
On 27 March 2015 a delegate of…

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

Case: [2017] AATA 1237
Decision Date: 1 August 2017

CaseChat Overview and Summary

This matter concerned an application by JNGS for the special rate of pension under the *Veterans' Entitlements Act 1984* (Cth). The Repatriation Commission opposed the application. The case was heard by Miss E A Shanahan, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether JNGS met the criteria for the special rate of pension, specifically the "alone" test as stipulated in section 24(2A)(d) of the Act. This test requires that a veteran's war-caused conditions must be the sole factor preventing them from undertaking remunerative work. The Tribunal also considered whether JNGS's gastro-oesophageal reflux disease (GORD) and sleep apnoea were war-caused conditions.

The Tribunal applied the interpretation of the "alone" test as established by the Full Court of the Federal Court in *Repatriation Commission v Richmond* and subsequently approved in *Beezly v Repatriation Commission*. This interpretation dictates that if any non-war-caused factor prevents, or contributes to preventing, the veteran from continuing remunerative work, the "alone" test will not be satisfied, even if that factor is of secondary importance. The Tribunal found that JNGS's headaches, which were not war-caused, contributed to preventing her from undertaking her last remunerative work. Furthermore, the Tribunal was satisfied beyond reasonable doubt that JNGS's GORD and sleep apnoea were not war-caused.

Consequently, the Tribunal determined that JNGS did not satisfy section 24(2A)(d) of the Act and therefore did not meet the eligibility criteria for the special rate of pension. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing JNGS was represented by Ms Walsh of counsel instructed by William Winter Solicitors. Mr Ken Rudge, a solicitor of the Advocacy Section of the DVA, appeared for the Commission. The Commission provided the documents lodged pursuant to s 37 of the Administrative Appeals Act 1975 (the T-documents) and both parties tendered a considerable amount of documentary evidence, a list of which is appended to this decision. JNGS, Dr David Baron, Associate Professor Brian Chambers and Dr Robyn Horsley gave evidence before the Tribunal. BACKGROUND TO THE APPLICATION CGLQ was born on 9 July 1945 and completed his education to the intermediate certificate level at a technical college in Ferntree Gully. He qualified as an electrical fitter and industrial electrician in March 1966 after a five year apprenticeship with the then State Electricity Commission in Victoria. On 1 March 1966 he lodged his application for enlistment in the Permanent Defence Force, Regular Army, nominating the Royal Australian Engineering Corp as his preferred assignment. His application was accepted. He enlisted for a period of six years. Whilst in the armed forces he received further training and certification. CGLQ served in South Vietnam for a period of 12 months between 25 June 1968 and 25 June 1969. On 31 January 1968 he had been assessed as being a below average tradesman requiring constant supervision. (Exhibit R16, page 41). CGLQ served in Vietnam as a radio and radar technician both at the Nui Dat base, servicing and repairing equipment, and in the field as necessary. He gained promotion to the level of Sergeant on 27 August 1971 and was discharged from the Regular Army on 14 March 1972 having completed his six year term of service. On the same date CGLQ applied to enlist in the Regular Army Emergency Reserve (Reserves) and was accepted. He served in the Reserves until 1982. This service involved annual attendance, in two week periods, at Reserve camps. In 1976 he advised he was unavailable that year and did not attend. From 1972 to 1982 CGLQ was paid for his attendance in the Reserves. Some two weeks prior to his discharge from the Regular Army CGLQ was seen by consultant gastroenterologist Dr Henry Hillman who, on 28 February 1972, reported that CGLQ had presented with gastrointestinal symptomatology which he considered to be a manifestation of anxiety. Further investigation was advised. (Exhibit R5A). Dr Hillman recorded that since returning from Vietnam in 1969 CGLQ had gained three stone in weight, which on the Tribunal’s calculations put his Body Mass Index (BMI) at 29. His BMI on enlistment in 1966 was 25.1. Following discharge from the Army, CGLQ was employed by the Victorian Department of Education. He obtained a Diploma of Education and taught in the Technical College Division of the Education Department. On 27 October 1975, CGLQ was admitted to the Royal Melbourne Hospital in a semi-comatose state and was diagnosed as suffering from meningo-encephalitis, probably viral. He was treated in hospital for a period of three weeks following which he was transferred to the Royal Talbot Rehabilitation facility. He had suffered a right hemiplegia, a degree of aphasia, total memory loss for events prior to the date of admission and was determined to be intellectually impaired.

Evidence

Evidence Before The Court

It is accepted that JNGS’s date of birth is 9 July 1945. However, most of the general practitioners’ entries, letters of referral and the reports of radiology, haematology and biochemical services record her date of birth as being 9 July 1952, as does the Department of Human Services and all data relating to the worker’s compensation claim, including JNGS’s handwritten and signed claim form. The Tribunal accepts that at the time of application to this Tribunal for review of the VRB decision, JNGS was 71 years of age but on the basis of her date of birth being 1952 would have been 64 years of age. This is of relevance to the requirements of the Act relating to Veterans that make claims for disability pension or increased rate of pension when they are over 65 years of age. EVIDENCE BEFORE THE TRIBUNALJNGS JNGS provided two statements the first of which was dated 24 August 2015 (Exhibit A1) the second 2 February 2016 (Exhibit A2). In examination-in-chief Ms Walsh took JNGS through the events commencing with her apprenticeship to her service in Vietnam. Where JNGS could remember various aspects, they were put to her by Ms Walsh and JNGS confirmed the evidence. She did not remember seeing the general practitioner Dr Kubicek who treated her from 1972 but did recall she had been diagnosed with functional dyspepsia and anxiety at that time. She was also aware that she had been diagnosed with PTSD by Dr Baron and that this had been accepted by the Commission as war-caused. JNGS agreed with the suggestion she had developed headaches and anxiety whilst in Vietnam. JNGS attributed both of these symptoms to her experiences which she described as being the fear of being in a war-zone and which she said she found traumatic. Without enlarging on the topic she referred to explosions and mortar attacks. JNGS had little recall of the event of 1975 when she was admitted to the Royal Melbourne Hospital with the probable diagnosis of meningo-encephalitis. This is not surprising, given she was unconscious at the time of her admission. She agreed that since this episode she has had great difficulties with her memory. She confirmed that she had been retired from the Education Department because of ill health and was granted a superannuation pension thereafter. JNGS agreed that she had been taking anti‑depressant medication from 1976, and possibly even as early as 1972. JNGS confirmed that she had undergone gender reassignment surgery in about 1989 and that in 1991 she had undertaken study to obtain a certificate in disability care. She said she had started working with the Department of Human Services in 1992 on a casual basis, with no set hours. JNGS worked in a Community Residential Unit, which is a house where four to five intellectually disabled residents reside. She said that most of her work was morning or afternoon shifts and there was a house supervisor present at all times. It was her job to help the residents prepare their meals, shower, make their bed and go shopping which would always involve two staff. JNGS confirmed that her activities were hands on, such as making sure residents’ shower water temperature was at an appropriate level and helping them with drying themselves after a shower.

Decision

Reasons for decision

As submitted by Mr Rudge the Full Court of the Federal Court has considered the interpretation of the alone test at length in recent years. As set out above, in Repatriation Commission v Richmond and as subsequently approved in Beezly v Repatriation Commission (2015) 68 AAR 23, Summers and Watkins in 2015, the Court said at 36:We respectfully agree with the learned primary judge’s view (at [108]) where her Honour said:The authorities in my view establish that 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.While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.The Court also addressed the amelioration of the alone test by s 24(2)(b) which applies to veterans under the age of 65 who had ceased, or not been able to engage in remunerative work, but this is not applicable in JNGS’s claim.CONCLUSION In this case, the Tribunal has found that JNGS’s headaches, which are not symptomatic of any war-caused conditions and which have not been claimed or determined to be war-caused, contributes to preventing JNGS from undertaking her last remunerative work. Based on the medical evidence before the Tribunal and the Full Court of the Federal Court’s determination in Richmond the Tribunal therefore decides that JNGS does not satisfy s 24(2A)(d) of the Act. She therefore does not meet the eligibility criteria for the special rate of pension. For the reasons set out above, the Tribunal is satisfied beyond reasonable doubt that JNGS’s GORD and sleep apnoea are not war-caused conditions. It is further reasonably satisfied that JNGS is not eligible to receive the special rate of pension. The decision under review is therefore affirmed.

Ratio Decidendi

Legal Principle Established

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