Large and Repatriation Commission (Veterans’ entitlements)

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Large and Repatriation Commission (Veterans’ entitlements) [2016] AATA 381 (7 June 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2014/5527

Re

James Large

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President Dr P McDermott RFD
Date 7 June 2016
Place Brisbane

I affirm the decision under review insofar as it determined that the applicant was not eligible for pension at the special rate and remit the application to the respondent to later this year determine whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension under s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

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

Deputy President Dr P McDermott RFD

Catchwords

VETERANS’ AFFAIRS – application for special rate pension – applicant currently in receipt of pension at 100% of general rate for accepted conditions – not satisfied that any accepted condition prevented the applicant from working – applicant to be assessed for eligibility for the Extreme Disablement Adjustment – decision remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Veterans’ Entitlement Act 1986 (Cth) ss 19, 23, 24, 28, 120

Cases

Repatriation Commission v Watkins [2015] FCAFC 10
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission vButcher (2007) 94 ALD 364

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

7 June 2016

INTRODUCTION

  1. On 24 December 2012, Mr James Large (“the applicant”) lodged a claim for an earnings-related rate of pension. On 17 July 2013, a delegate of the Repatriation Commission (“the respondent”) accepted the post-traumatic stress disorder of the applicant as a condition related to his service and continued the disability pension of the applicant at 100% of the general rate. On 23 September 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 22 October 2014 the applicant lodged an application to this Tribunal for a review of that decision seeking a special rate of pension.

    BACKGROUND

  2. The applicant seeks a pension at a special rate for conditions that he claims are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his employment questionnaire dated 7 December 2004, outlined his last employment since the time when he was discharged from the Navy in 1987.[1] In that questionnaire he stated that his last employment was with BP Solar which ceased because of his orthopaedic conditions. His advocate who has worked hard to assist the applicant while under his own difficult circumstances has properly acknowledged that the applicant has not been assisted by the inconsistencies in his work history.

    [1] Exhibit A, T-Documents, T22 at pp. 250-251.

  3. The employment questionnaire dated 7 December 2004 is certainly not accurate because it does not disclose his period of employment as a labourer. The VRB was informed that he worked as a labourer for 44 hours a week from 18 September 2001 to 16 November 2001. It would appear from a certificate dated 16 June 2015 which was signed sometime after the decision of the VRB that the period of…

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Details
Case
[2016] AATA 381
Decision Date

CaseChat Overview and Summary

This case concerned an application for review by Mr James Large (the applicant) against a decision of the Repatriation Commission (the respondent). The applicant sought a pension at the special rate under the *Veterans’ Entitlement Act 1986* (Cth) for conditions he claimed were attributable to his service in the Royal Australian Navy. The respondent had previously accepted post-traumatic stress disorder as a service-related condition and continued the applicant's disability pension at 100% of the general rate, a decision affirmed by the Veterans’ Review Board.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a special rate pension as defined by section 24 of the Act. Specifically, the court had to determine if the applicant's incapacity from his accepted war-caused injuries or diseases alone rendered him totally and permanently incapacitated, meaning he was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, and if this incapacity prevented him from continuing remunerative work he was undertaking, causing a loss of earnings.

The Tribunal considered the applicant's work history and the various explanations provided for ceasing employment. It noted inconsistencies in the applicant's accounts of why he stopped working, particularly regarding his employment with BP Solar. Having regard to evidence of the applicant working in excess of 40 hours per week in some weeks after 1995, the Tribunal was not reasonably satisfied that his orthopaedic conditions or any other accepted condition prevented him from working after December 2004. While acknowledging the applicant's reduced work capacity and that his post-traumatic stress disorder now prevented him from working more than eight hours per week, the Tribunal found he was not eligible for a pension at the special rate.

Consequently, the Tribunal affirmed the decision under review regarding the applicant's ineligibility for the special rate pension. However, the application was remitted to the respondent to determine the applicant's entitlement to the Extreme Disablement Adjustment rate of pension under section 22(4) of the Act. This course was deemed economical, allowing the applicant to make submissions and provide updated medical assessments without needing to lodge a new claim.

Orders

Orders of the court

I affirm the decision under review insofar as it determined that the applicant was not eligible for pension at the special rate and remit the application to the respondent to later this year determine whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension under s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

Background

Background to the litigation

On 24 December 2012, Mr James Large (“the applicant”) lodged a claim for an earnings-related rate of pension. On 17 July 2013, a delegate of the Repatriation Commission (“the respondent”) accepted the post-traumatic stress disorder of the applicant as a condition related to his service and continued the disability pension of the applicant at 100% of the general rate. On 23 September 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 22 October 2014 the applicant lodged an application to this Tribunal for a review of that decision seeking a special rate of pension.BACKGROUND The applicant seeks a pension at a special rate for conditions that he claims are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his employment questionnaire dated 7 December 2004, outlined his last employment since the time when he was discharged from the Navy in 1987.[1] In that questionnaire he stated that his last employment was with BP Solar which ceased because of his orthopaedic conditions. His advocate who has worked hard to assist the applicant while under his own difficult circumstances has properly acknowledged that the applicant has not been assisted by the inconsistencies in his work history. [1] Exhibit A, T-Documents, T22 at pp. 250-251. The employment questionnaire dated 7 December 2004 is certainly not accurate because it does not disclose his period of employment as a labourer. The VRB was informed that he worked as a labourer for 44 hours a week from 18 September 2001 to 16 November 2001. It would appear from a certificate dated 16 June 2015 which was signed sometime after the decision of the VRB that the period of time that he undertook work as a labourer was more extensive than what he informed the VRB. In that certificate it is stated that the work for an electrician commenced in 1995 and ceased when the electrician employed a younger man in about 2002. The applicant made a statutory declaration on 10 June 2015 in which he disclosed particulars of his employment after his discharge from the Navy.[2] In Annexure B to his statutory declaration he details particular of his employment after his discharge. [2] Exhibit I, Statutory Declaration of James Large with annexures declared on 10 June 2015.LEGISLATIVE FRAMEWORK To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides: Special rate of pension(1) This section applies to a veteran if:(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab) the veteran had not yet turned 65 when the claim or application was made; and(a) …(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; …(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 his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; …

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I remit this application to the respondent to determine whether the applicant will later in this year be entitled to the Extreme Disablement Adjustment. The applicant would have the opportunity to make submissions on whether he satisfies s 22(4)(c) of the Act and to provide any up-to-date medical assessment of his accepted conditions. If he is entitled to the Extreme Disablement Adjustment, that benefit can only be payable after the applicant satisfies s 22(4)(b) of the Act. I have decided that this is the most “economical”[3] course of action to take so that the applicant will not have to make another claim and because he may not be able to have the assistance of his advocate who is based overseas.[3] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.DECISION I affirm the decision under review insofar as it determined that the applicant was not eligible for pension at the special rate and remit the application to the respondent to later this year determine whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension under s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

The applicant has a number of accepted conditions apart from post-traumatic stress disorder, chronic simple bronchitis, bilateral sensorineural hearing loss, tinnitus, osteoarthritis of both hips, plantar warts on both feet, alcohol induced mood disorder with depressive features, alcohol abuse, lumbar spondylosis, osteoarthritis of both knees, and tinea.CONSIDERATION The applicant in his Statement of Facts, Issues and Contentions dated 7 July 2015 contends that his accepted disability alone prevented him from obtaining any full-time employment since December 1994. The applicant also contends that the criteria of s 24 of the Act were met at the time when the applicant ceased work due to his accepted disabilities alone. In his employment questionnaire dated 7 December 2004 the applicant stated that he had not worked since December 1994 when he worked for BP Solar. In the claim form dated 17 June 2003 the applicant declared that he ceased this employment because of hip problems. However, in a report of McCombie Associates dated 8 April 2004 it is stated that he was laid off when the business became less viable. After his work at BP Solar the applicant worked as a labourer. Before the VRB and this Tribunal he stated that this employment ceased in 1994 because he had a disagreement with a fellow worker who he had threatened because he considered that he was lazy. The applicant has at different times provided different explanations for ceasing this work at BP Solar including the desire to take up the role of a house husband. Annexure B to his statutory declaration of 10 June 2015 discloses the periods of employment that he had after he left BP Solar. I should record that I am not reasonably satisfied that Annexure B is a full and correct record of his employment. After October 1995 the applicant was in regular employment in some weeks he worked in excess of 40 hours a week. In December 1995 he worked in excess of 50 hours for two weeks. The VRB referred to the two months in 2001 where the applicant had been working 44 hours per week. Having regard to this evidence I cannot be reasonably satisfied that the orthopaedic conditions of the applicant or any other accepted condition prevented him from working after December 2004. It seems plausible that the reason why he was laid off from BP Solar was because of the viability of the business. I consider that the applicant was not eligible for a pension at the special rate after he left BP Solar in 2004. I will consider whether the applicant was eligible for pension at the special rate at any other time in the assessment period. To be eligible the applicant must satisfy certain criteria in s 24 of the Act. The applicant is in receipt of pension at 100% of the general rate, he therefore satisfies s 24(1)(aa) of the Act because he has a pension which is at least 70% of the general rate. I next consider whether the applicant satisfies s 24(1)(b) of the Act. On 29 September 2003 the applicant told Dr Delaforce that he had stopped his limited activities that included fishing and house maintenance. However, at that time he was still working ten hours per week doing lawn mowing and as a garden maintenance handyman. Annexure B to his statutory declaration of 10 June 2015 refers to this work. However, he also states that from October 2008 to December 2013 he was working less than eight hours a week. I accept the evidence of the applicant that he now has a reduced work capacity. I have also had regard to the report of Dr Katz dated 20 August 2013 and I am satisfied that the applicant is now prevented from working for eight hours a week by reason of his accepted condition of post-traumatic stress disorder. The applicant thereby satisfies s 24(1)(b) of the Act.