Joseph Andre O'Brien and Repatriation Commission

Case [2013] AATA 330

[2013] AATA 330

Division VETERANS' APPEALS DIVISION

File Number

2012/2397

Re

Joseph Andre O'Brien

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 22 May 2013
Place Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that Mr O’Brien satisfies the eligibility criteria for special rate of disability pension, the date of effect being 25 May 2010. 

[sgd]........................................................................

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – special rate – profound hearing loss – occupation that of a teacher –  profound hearing loss – non-war-caused conditions not contributing to incapacity for work – decision set aside.

Legislation

Veterans’ Entitlement Act 1986 sections 23, 24 and 28

Cases

Cavell v Repatriation Commission (1988) 9 AAR 534

Chambers v Repatriation Commission (1995) 55 FCR 9

Flentjar v Repatriation Commission (1997) 48 ALD 1

Hall v Repatriation Commission (1994) 33 ALD 454

Peacock v Repatriation Commission (2004) 40 AAR 143

Smith v Repatriation Commission (2012) 131 ALD 63

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Miss E A Shanahan, Member

22 May 2013

  1. Mr O’Brien has the following disabilities for which the Repatriation Commission (the Commission) has accepted liability:  bilateral sensory hearing loss; bilateral tinnitus; oesteoarthrosis affecting both knees; lumbar spondylosis with multilevel disc degeneration; depressive disorder and post traumatic stress disorder (PTSD).  He has the non‑accepted disabilities of Meniere’s disease and cervical spondylosis with multilevel disc degeneration.

  2. Mr O’Brien has been receiving the disability pension at 100 per cent of the general rate since 25 May 2010.  He  lodged an application for an increase in his disability pension on 10 September 2010, which confirmed an informal claim received by the Department of Veterans’ Affairs (the Department) on 25 August 2010.   On 4 February 2011 a delegate of the Department increased his rate of disability pension to 100 per cent of the general rate.  However, the delegate determined that Mr O’Brien did not satisfy the criteria for special or intermediate rate of pension as he had retired from work in 2003, had not sought work thereafter, and the delegate was not satisfied that Mr O’Brien is prevented from working because of his accepted disabilities alone.

  3. Mr O’Brien lodged an application to the Veterans’ Review Board (the VRB) seeking review of the delegate’s decision on 21 February 2011, primarily on the basis of the delegate’s rejection of his cervical spondylosis as being war-caused.  The VRB affirmed this aspect of the delegate’s decision.  The VRB also considered Mr O’Brien’s application for special rate based on his hearing loss, an accepted disability since 2001 for the right ear and since 2005 for the left ear.  The VRB adjourned the hearing in order for the Department to obtain expert medical opinion relating to the impact of Mr O’Brien’s hearing loss on his capacity to work.

  4. A differently constituted VRB reheard the application on 4 June 2012, following receipt of the expert medical opinions of Mr Robin Hooper, Ear Nose and Throat Surgeon, and Doctor Amanda…

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Joseph Andre O'Brien and Repatriation Commission [2013] AATA 330
Case
[2013] AATA 330
Decision Date

CaseChat Overview and Summary

The case of Joseph Andre O'Brien and Repatriation Commission involved an application for review of a decision made by the Veterans' Review Board (VRB). Mr. O'Brien, who served in the Australian Army from 1970 to 1971, including operational service in South Vietnam, sought to challenge the VRB's decision through the Administrative Appeals Tribunal (AAT). The primary legal issue before the court was whether Mr. O'Brien met the criteria for total and permanent incapacity under Section 24(1)(c) of the relevant legislation, given his profound deafness and other conditions, both service-related and not. The court had to determine if Mr. O'Brien's inability to work, specifically as a teacher, was due to his war-caused deafness and whether other factors such as his age, absence from the workforce, or other personal circumstances contributed to his inability to work.

The Administrative Appeals Tribunal found that Mr. O'Brien was indeed totally and permanently incapacitated from teaching due to his profound deafness, a condition linked to his military service. The Tribunal accepted the medical evidence that his deafness made it unsafe for him to engage in occupations requiring social interaction, such as teaching. Additionally, the Tribunal determined that while Mr. O'Brien's other conditions and personal circumstances, such as his age and past work patterns, were significant, they did not prevent him from engaging in remunerative work other than teaching. The Tribunal concluded that Mr. O'Brien's profound war-caused deafness was the primary factor preventing him from continuing his previous employment as a teacher. The court thus upheld Mr. O'Brien's claim for total and permanent incapacity.

The final orders of the Administrative Appeals Tribunal affirmed Mr. O'Brien's eligibility for total and permanent incapacity benefits, recognizing his profound deafness as the primary condition preventing him from continuing in his previous employment as a teacher. The decision underscored the importance of considering the specific nature of an individual's service-related disabilities and how they impact their ability to perform their previous occupation or any alternative forms of remunerative work.

Orders

Orders of the court

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Background

Background to the litigation

Mr O’Brien lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 18 June 2012. At the hearing Mr O’Brien was represented by Ms Fiona Spencer of counsel, instructed by Williams Winter solicitors and the Commission was represented by Mr Ken Rudge, a solicitor employed by the Department. The Tribunal was provided with the s 37 documents (T‑documents, Exhibit R1) and the parties tendered further documentation which is annexed to this decision. Mr O’Brien attended the hearing and gave evidence before the Tribunal. Mr Gary Miller, a senior teacher at The Farm School in Western Australia, gave evidence by telephone. BACKGROUND TO THE APPLICATION Mr O’Brien was conscripted into the Australian Army as a National Serviceman and served between 28 January 1970 and 15 November 1971. His service included operational service in South Vietnam from 20 October 1970 to 16 September 1971. His National Service had been deferred until he completed his Bachelor of Rural Science at the University of New England. During Mr O’Brien’s South Vietnam tour of duty, he used explosives regularly as a member of the Well Boring Team. During the last two months of his tour, he was again exposed to explosives in the course of his duties as an operator of a rock crusher in the Nui Dat quarry (Exhibit A1). When he returned to Australia Mr O’Brien complained of hearing loss. As part of his discharge on medical examination, he underwent assessment by an Ear Nose and Throat specialist and an audiogram. The latter was said to have been abnormal. In 1972 Mr O’Brien resumed employment with the New South Wales Department of Agriculture, having obtained his degree in rural science as part of a departmental cadetship. He remained with the department until late 1974. After some short term jobs, including teaching, he studied for a Diploma of Education, which he completed in late 1976. Thereafter, he worked as a teacher, mainly in isolated Aboriginal communities in the Northern Territory, until he ceased work in approximately July 2009. He had resigned from the Northern Territory Department of Employment, Education and Training (the Department of Education) on 23 January 2004 at the age of 55 in order to access part of his superannuation. He subsequently registered and worked as a teacher in Western Australia (Exhibit R5). Throughout his employment as a teacher, Mr O’Brien established a pattern of working full time for years and then taking extended leave without pay for several months up to one year. In his evidence before the Tribunal, he said he had 1978, 1982, 1984, 1992, 1994, 1998 and 2000 off work without pay and during these periods he travelled widely and/or bought renovated and resold housing properties. Following his resignation in January 2004, it was his plan to return to Sydney and renovate a house he owned in Petersham. The cost of the renovation was $40,000 more than he had planned and as he was then 55 years of age he decided to access his superannuation to pay for the renovations. In order to so, he had to inform the Northern Territory Department of Education that he planned to retire. Despite this, it was his intention to return to work late 2005.

Evidence

Evidence Before The Court

Mr Miller said that he had not observed the accident when the Holden utility was driven into the workshop door but was told about it. He said that he helped Mr O’Brien fix the damage to the post and the door. He described Mr O’Brien as being very shaken by the event, apologetic regarding the damage to the door but primarily being concerned for the welfare of the students. Mr Miller was quite certain that these events took place in July 2009, as this was the time when Ms Wilkinson had commenced her long service leave and he was acting in her role. According to Mr Miller, Mr O’Brien had told him the day after this event that he would not be continuing in the role of a relief teacher. DOCUMENTARY EVIDENCE BEFORE THE TRIBUNALDepartment of Education, Western Australia The Department of Education, Western Australia provided documentation regarding Mr O’Brien’s employment as a relief teacher at The Farm School (Exhibit R5). These documents included the dates of Mr O’Brien’s actual employment which was between 10 September 2007 and 30 March 2009. The documents record that Mr O’Brien worked for a total of 45 days as a relief teacher at The Farm School. The Tribunal notes that Mr O’Brien and Mr Miller considered these figures to be inaccurate. They were of the opinion that Mr O’Brien had worked for a period longer than 45 days in total. Prior to commencing work, Mr O’Brien had been assessed by an occupational physician who seems to have undertaken a very cursory examination, as evidenced by five short lines of notation, which indicates that Mr O’Brien’s testing consisted of Able to hear conversational voice. It appears to declare Mr O’Brien was fit for employment as a teacher. The Department of Education also obtained a teacher appraisal/reference regarding Mr O’Brien from Mr Ken Barnes of the Katherine High School in the Northern Territory. Mr O’Brien had worked for many years at the Katherine High School. Mr Barnes completed the appraisal, which was a tick the boxes form, declaring Mr O’Brien as being satisfactory in all aspects of teaching but commented that Joseph performed at a level much higher than satisfactory in all areas identified. The Departmental documents also contain confirmation of Mr O’Brien having completed training modules and therefore being qualified in eight areas relating to metals and engineering.Dr Nigel Strauss, psychiatrist Dr Strauss assessed Mr O’Brien’s accepted conditions of depression and PTSD at the request of the Department (Exhibit R3). Dr Strauss agreed with the diagnosis of PTSD and a depressive disorder but found that neither condition would prevent Mr O’Brien from undertaking remunerative work.Dr Robyn Horsley, Occupational Physician Dr Horsley assessed Mr O’Brien’s work capacity at the request of the Department (Exhibit R4). Having taken a detailed medical history and performed a thorough physical examination, Dr Horsley concluded Mr O’Brien’s primary disability was his hearing deficit which in her opinion prevented him from working safely in the workshop environment as a teacher. She considered him to be totally and permanently disabled. Dr Horsley did not believe that Mr O’Brien’s cervical spondylosis prevented him from working as a teacher although it could limit his teaching style. The only other non‑service related factor that she raised was the fact that at the time of the consultation Mr O’Brien was 64 years old and had been out of the workforce for three years.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In response, Ms Spencer submitted that Mr O’Brien would have continued to teach in Western Australia and then in Victoria as he accompanied his wife in the various moves to further her study and career. Ms Spencer rejected Mr Rudge’s contention that the decisions in Hendy and Peacock were not in accord. TRIBUNAL’S DELIBERATIONS The Tribunal agrees with the parties that the only question for determination is whether Mr O’Brien meets the requirements of s 24(1)(c) of the Act. Doctors Sillcock and Handley and Mr Hooper agreed that Mr O’Brien cannot work because of his profound deafness. The Tribunal notes Mr Hooper’s wording, adopted by Dr Sillcock, that: Mr O’Brien is unable to work in any occupation which involves social interaction. The event that precipitated Mr O’Brien’s retirement in 2009 disturbed him greatly, as he realised his hearing deficit posed a hazard to others as well as to himself. While he was aware of his deteriorating hearing from approximately 2001 onwards and reported it to his employers, including the Western Australian authorities in 2008, he was reassured after medical assessments that he was fit to work. The Tribunal accepts the evidence of Doctors Sillcock and Handley and Mr Hooper. Accordingly, the Tribunal finds that Mr O’Brien has been totally and permanently incapacitated from teaching since 2009 and that he would not meet Workplace Health and Safety requirements as a handyman, welder or in similar occupations. The Tribunal finds that Mr O’Brien’s other accepted conditions and those rejected as not being war-caused would not incapacitate him from working. He assiduously follows an exercise program and has availed himself of all recommended medical treatment. At the age of 64 he climbed Mount Kilimanjaro to a height of 5,895 metres. . The remunerative work that Mr O’Brien has undertaken for more than the past 30 years is that of teaching at a secondary level, predominantly in vocational education. He has renovated houses for himself and undertaken house painting, welding and labouring work for remuneration. The Respondent has accepted that Mr O’Brien cannot or should not perform manual work. The Tribunal agrees, since by doing so, in either a part-time or full-time capacity, Mr O’Brien would probably aggravate and render symptomatic his accepted conditions of oesteoarthrosis of the spine and knees and ankles and also his unaccepted condition of cervical spondylosis. The Tribunal agrees with Ms Spencer that the answer to the first question from Flentjar is teaching. The Tribunal also agrees with Ms Spencer that the answer to the second question from Flentjar is yes; the disease preventing him from continuing in remunerative work being his profound war-caused deafness. Question 3 from Flentjar requires the Tribunal to consider whether there are other factors in preventing Mr O’Brien from continuing to undertake his previous employment as a teacher. The factors raised by the Respondent are:·Mr O’Brien’s age; ·his absence from the workforce since 2009;·the influence, if any, of his wife’s career moves;·his receipt of the service pension;·his accessing of superannuation; and·his prior pattern of work, wherein he has ceased working for periods throughout his career.