Law and Repatriation Commission - [2000] AATA 546

DECISION AND REASONS FOR DECISION [2000] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1499

VETERANS' APPEALS DIVISION       )
           Re      Vivian Frank LAW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date5 July 2000
PlaceSydney

Decision      The decision under review, being the decision of the Repatriation Commission of 3 June 1998 which continued pension payable to Vivian Frank Law ("the Applicant") at 80 percent of the General Rate, is set aside, and in substitution therefor the Tribunal decides that the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate with effect on and from 19 March 1998.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – assessment- Veteran assessed at 80 percent of General Rate – whether entitled to Special Rate – whether ceased work because of war-caused conditions alone including PTSD – whether financial incentive to leave work because of redundancy

Veterans' Entitlements Act 1986 – ss 24, 28

Forbes v Repatriation Commission (2000) 171 ALR 131
Fry v Repatriation Commission (1997) 47 ALD 776

REASONS FOR DECISION

5 July 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 June 1998, that continued payment of pension to Vivian Frank Law ("the Applicant") at 80 percent of the General Rate. The Applicant sought review of that decision by the Veterans' Review Board, and the primary decision was affirmed. The Applicant then sought review by this Tribunal. All applications for review were made in time. The Applicant lodged an application for increase on 19 March 1998, and therefore that is the earliest date from which payment of pension can be made to the Applicant in respect of this application.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing. The following documents were tendered as evidence on behalf of the Applicant –

Statement of the Applicant, dated 15 December 1999 (exhibit A);
Medical report of Dr A Dinnen, consultant psychiatrist, dated 8 December 1999 (exhibit B);
Statement of P Kalaydjian, dated 6 December 1999 (exhibit C);
Request from Defence Support for severance benefits, dated 19 January 1998 (exhibit D);
Computerised records of the Applicant's sick leave between 27 May 1991 and 3 February 1998 (exhibit E).

The following documents were tendered as evidence on behalf of the Respondent –

Medical report of Dr R Lewin, psychiatrist, dated 27 January 2000 (exhibit 1);
Medical reports of Dr R McEwin, medical practitioner, dated 8 February 2000 and 23 February 2000 (exhibit 2);
Medical records from Dr J Thomas, Malabar Medical Centre (exhibit 3);
Employment Separation Certificate (exhibit 4);
Letter from Department of Defence to the Applicant dated 2 March 1998 (exhibit 5);
Election by Applicant for Voluntary Redundancy (exhibit 6).

The Applicant is seeking payment of pension at the Special…

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

AGLC: Law and Repatriation Commission [2000] AATA 546
Case: [2000] AATA 546
Decision Date: 5 July 2000

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal was between Forbes, the applicant, and the Repatriation Commission, the respondent. The applicant sought to have his pension rate assessed at the Special Rate under the Veterans' Entitlements Act 1986, rather than the General Rate, on the basis that his war-related conditions, including post-traumatic stress disorder (PTSD), made him unable to work. The Repatriation Commission assessed the applicant at 80 percent of the General Rate, finding that his retirement was due to redundancy rather than solely due to his war-caused conditions. The Tribunal was tasked with determining whether the applicant's war-related conditions, including PTSD, were the sole reason for his inability to work and whether he was entitled to the Special Rate of pension.

The primary legal issues before the Tribunal were whether the applicant's cessation of work was solely due to war-caused conditions, including PTSD, and whether there was a financial incentive for the applicant to leave work due to redundancy. The Tribunal needed to assess the evidence presented by both parties, particularly the medical evidence, to determine if the applicant met the criteria for the Special Rate under section 24(1)(b) of the Veterans' Entitlements Act 1986. Additionally, the Tribunal had to consider the impact of the applicant's physical health problems and whether they influenced his decision to retire.

The Tribunal found that the applicant was a poor historian but a genuine and honest witness. It concluded that the applicant was unable to work due to his PTSD, and his physical health problems were not a factor in his decision to retire. The Tribunal was satisfied that the applicant's irritability and lack of concentration due to his condition would have precluded satisfactory performance in any other stores work that might have been available. The Tribunal rejected the opinions of Dr Lewin and Dr McEwin, finding that they did not adequately consider the history obtained by other doctors. Based on the evidence, the Tribunal determined that the applicant's war-related conditions, including PTSD, were the sole reason for his inability to work.

The Tribunal ordered that the applicant's pension rate be assessed at the Special Rate under the Veterans' Entitlements Act 1986. The Tribunal found that the applicant met the criteria for the Special Rate because his war-caused conditions, particularly PTSD, rendered him incapable of working. The decision highlighted the importance of considering the totality of the evidence and the specific circumstances of each case when determining pension rates for veterans.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this regard it was submitted in reply for the Applicant that these sort of matters turn on their own facts, and that he relied on the test in Fry v Repatriation Commission (1997) 47 ALD 776.consideration of evidence and findings of fact The Tribunal finds that the Applicant was a genuine and honest witness who gave his evidence to the best of his ability. However, it was not easy to obtain a comprehensive view of his position without considering it in the context of the history he provided to the respective doctors over a number of years. Indeed, taking into account all the evidence, the Tribunal finds that the Applicant was a poor historian. In respect of the test in s 24(1)(b), the Tribunal finds on the evidence of Dr Keshava, Dr Thomas and Dr Dinnen that because of the Applicant's PTSD, he is unable to work for eight or more hours per week. Indeed, the Tribunal is of the view that the Applicant is unable to undertake any work because of his PTSD. It is quite unrealistic to expect that the Applicant is capable of work as a storeman when he has a demonstrated inability to concentrate sufficiently to ensure that he does not make mistakes. Moreover, it is quite unrealistic to expect that he can continue to work in an environment where he is regularly having disagreements with his peers and his supervisors. The fact that the Applicant did not actively seek a less stressful job in the Department of Defence does not go against his case. The Tribunal is reasonably satisfied that by the time he was not coping with his work the effect of his condition was such that his irritability and lack of concentration would have precluded satisfactory performance in any other stores work that might have been available had he sought it. The Tribunal notes from the clinical records of Dr Thomas's practice (exhibit 3) that the Applicant was regularly consulting his doctor in respect of a range of his physical problems. However, from his sick leave records (exhibit E) there are but a few specific references to any of these physical conditions as reasons for his taking sick leave. On the other hand there is regular reference to sick leave for "war service related" conditions, particularly from 1995 onwards. While the Respondent's representative in cross-examination ascertained that the Applicant has had considerable problems with some of his physical conditions, there was nothing in the Applicant's evidence to support the submission made on behalf of the Respondent that the Applicant's physical conditions were part of the reason why he decided to leave work. The Tribunal is reasonably satisfied that the Applicant's physical health problems, while serious and disabling from time to time, were not implicated in his decision to retire. The deterioration in his shoulder condition and subsequent surgery was after the application date, and does not become a factor to be taken into account by the Tribunal. The Tribunal is not persuaded by the opinion of Dr Lewin about the Applicant's ability to continue to work or that he ceased work for a range of reasons only one of which was his PTSD. While at the time of his interview Dr Lewin had access to the history obtained by Dr Keshava and Dr Dinnen, there is no indication from his report that he attempted to verify or clarify any of that history. On the other hand, the history he recorded about the Applicant's decision to retire is glib and very limited. Having noted the way in which the Applicant gave his evidence at the hearing and the difficulties recorded by Dr McEwin in obtaining a reliable history, the Tribunal concludes that Dr Lewin had similar difficulties and also apparently failed to take account of the history obtained by others insofar as he made no reference to it. Likewise, the Tribunal is not persuaded by Dr McEwin's opinion, which relied essentially on Dr Lewin's report. Although Dr McEwin preferred Dr Lewin's opinion to that of Dr Keshava he made no attempt to establish the basis for that preference.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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