Leigh and Repatriation Commission

[2005] AATA 1081

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1081

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/746

VETERANS' APPEALS  DIVISION		)
Re		ADAM JOHN LEIGH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date28 October 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS – applicant currently entitled to pension at Special Rate – 25 years of age – likely to improve or recover – appropriate to classify as temporary payment at Special Rate with a review not before 2009 – decision affirmed

Veterans’ Entitlements Act 1986: ss24, 25, 31

McDonald v Director-General of Social Security 6 ALD 6

REASONS FOR DECISION

Deputy President Don Muller        

1.Adam John Leigh, the Applicant, receives a disability pension at the Special Rate, on a temporary basis, pursuant to the provisions of the Veterans’ Entitlements Act 1986 (the VEA), with a review to be conducted no earlier than 25 August 2009.

2.Mr. Leigh seeks a review of the decision to grant him pension at the Special Rate on a temporary basis.  He contends that he should be granted the pension on a permanent basis.

3.At the hearing, the Applicant was represented by Mr. Honchin of counsel, and the Respondent was represented by Mr. Stoner.

4.The following matters are not in dispute and the Tribunal finds as follows:

(i)Adam John Leigh was born on 7 May 1980.

(ii)He attended Pimlico State High School in Townsville.  He was dux of the school and school captain in his senior year.

(iii)He competed in gymnastics at the Australian national level.

(iv)He joined the Australian Regular Army on 9 March 1999.  His ambition was to do some years as an infantry soldier and then apply for a commission and attend RMC Duntroon.

(v)He completed two tours of duty in East Timor.  The first was from 20 September 1999 to 19 February 2000.  The second was from October 2001 to April 2002.

(vi)During his first tour of duty in East Timor he experienced an incident during a border patrol which he found to be distressing.

(vii)Following the border incident he became more withdrawn, he lost energy and enthusiasm, he became tearful and he began to increase his intake of alcohol.

(viii)His second tour of duty was straightforward and he coped reasonably well with it.

(ix)About three months after returning from his second tour of duty in East Timor he travelled from Townsville to Sydney by plane.  Whilst travelling on the plane he began to feel alternatively hot and cold and anxious.

(x)He developed bad anxiety and sought medical treatment.

(xi)His marriage broke down.  He moved out on his own for a time but later moved in to his mother’s home to live with her.

(xii)He has been diagnosed as suffering from the following conditions, which have all been accepted by the Respondent as service related:

·Post-traumatic stress disorder;

·Alcohol dependence or abuse;

·Sensorineural hearing loss of the right ear;  and

·Tinnitus in the right ear.

(xiii)The Respondent has accepted that at present and for some time into the future Mr. Leigh cannot undertake remunerative work, because of his service-related incapacity alone.

(xiv)On 14 November 2003, the Respondent assessed disability pension under the Act at 90 per cent of the General Rate, with effect from 7 April 2003.

(xv)On 26 February 2004, pursuant to section 31 of the Act, the Respondent increased the rate of pension payable to Mr. Leigh to temporary payment at the Special Rate, pursuant to section 25 of the Act, with effect from 11 December 2003 and until 11 December 2005.

(xvi)On 25 August 2004, the Veterans’ Review Board varied the section 31 decision by determining that the temporary payment at the Special Rate is not to be reviewed at any time earlier than 25 August 2009.

5.The Respondent does not accept that Mr. Leigh’s level of incapacity is “permanent” within the meaning of that term in subsection 24(1)(b) of the VEA.

6.The issues for the Tribunal are:

(i)Whether Mr. Leigh is permanently incapable of undertaking remunerative work, within the meaning of those terms in section 24(1)(b) of the VEA;  and

(ii)If Mr. Leigh is not so permanently incapacitated, for what period of time is he entitled to temporary payment of pension at the Special Rate, pursuant to section 25 of the VEA.

7.The Respondent is not seeking a reduction in the time set by the Veterans’ Review Board for review, namely, not before 25 August 2009.

8.The relevant legislation provides as follows:

“Special rate of pension

s.24(1)  This 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;

Temporary payment at special rate

s.25(1)  Where the Commission is satisfied that:

(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both;  and

(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;

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.

Review by Commission

s.31 (1)  Where:

(a)the time has not expired for making application to the Board under section 135 for a review of a decision of the Commission with respect to:

(i)a claim for a pension in accordance with section 14;

(ii)an application for an increased pension, or for a pension, in accordance with section 15;  or

(b)an application has been duly made to the Board under section 135 for a review of such a decision of the Commission but has not been determined by the Board;

The Commission may, in its discretion, review that decision and, if it varies that decision, it may approve as the date as from which the variation shall operate a date not earlier than the earliest date as from which the decision as so varied could have operated if it had been made by the Board, in substitution for the original decision, upon a review of the original decision.”

9.The case put on behalf of Mr. Leigh is to the following effect:

·     He is very ill;

·     He has been treated by an experienced psychiatrist for the past two years and he has not improved;

·     It is unlikely that he will ever improve.

10.The case put on behalf of the Respondent is to the following effect:

·     Mr. Leigh is relatively young at 25 years of age;

·     He has only been undergoing treatment for two years;

·     It is likely that he could suddenly improve, certainly within the next two or three years;

·     He would not normally expect to retire until the age of 60 or 65;

·     Improvements in medical knowledge are occurring every year;

·     It would be highly speculative and unnecessarily pessimistic to conclude that he will not improve over the next 30 or 40 years.

11.The Tribunal had the benefit of hearing evidence from two well-qualified psychiatrists who have both had extensive clinical experience.  Dr. Rogers expressed the view that it is most unlikely that Mr. Leigh will improve.  Dr. Cook expressed the view that it is too early to be able to say whether Mr. Leigh’s disability is permanent.

12.Dr. Rogers has been treating Mr. Leigh since June 2003.  He made the diagnosis of PTSD (with Major Depression and Alcohol Dependence).  Dr. Rogers made the following points:

·     Mr. Leigh attended an intensive community based program for PTSD sufferers, but he remained unable to work;

·     There is good evidence of severe and continuing symptoms, despite intensive treatment interventions;

·     PTSD is a chronic debilitating condition and there is every indication that this will continue to be so for Mr. Leigh, particularly given the treatment inputs and failure to improve.

·     It would be highly unlikely that Mr. Leigh will return to work on a full or part-time basis, even for up to eight hours per week.

·     Mr. Leigh’s incapacity is likely to continue for an indefinite period given the above experience.

13.Dr. Cook examined Mr. Leigh on 5 February 2005.  He received further material in March 2005.  He made his assessment on 19 April 2005.  He made the following points:

·     Mr. Leigh has PTSD and his symptoms are of sufficient severity to warrant a separate diagnosis of Major Depressive Disorder;

·     Mr. Leigh also suffers from Alcohol Dependence;

·     Mr. Leigh is certainly severely and markedly incapacitated by his various psychiatric conditions;

·     His problems have been complicated by the fact that his younger brother has become severely incapacitated himself and is comatose following a motor vehicle accident;

·     Mr. Leigh is incapable of working for any periods of time in a remunerative capacity;

·     It is too early in his clinical picture to say whether he will remain unable to work totally for the rest of his life;

·     He is still a young man who has a good track record at school and in the Army behind him;

·     He has a supportive family;

·     He had a good childhood;

·     He will probably not improve in the short term;  that is, in the next two years;

·     It is usual for people who suffer from PTSD to have a year or two of poor functioning;

·     The possibility of improvement exists and there is an approximate 50% chance that he will be able to re-enter the work force over the next four or five years, even if it is within a limited/part-time capacity;

·     He could have symptoms for the rest of his life but may be able to lead a life where he functions well;

·     The longer the review period the better.

14.In ordinary usage the word “permanent” means:

The New Shorter Oxford English Dictionary (1993)

Permanent adj. continuing or designed to continue indefinitely without change;  abiding, lasting, enduring; persistent.

The Macquarie Concise Dictionary (1992)

Permanent adj.  Lasting or intended to last indefinitely; remaining unchanged;  not temporary;  enduring;  abiding.

15.The Tribunal was referred to an observation by Woodward J in McDonald v Director General  of Social Security (1984) 6 ALD 6, at 13 where he said,

“The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made.  It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time.  Unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent.

In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.  (Cf Re Tiknaz and Director-General of Social Services (1981) 4 ALN No 19).

This test involves two questions.  The first is whether it is more likely than not that the disability will terminate (or fall below 85 per cent in the sense - referred to above) at some time in the future.  Even if the answer to this question is ‘Yes’, I think it would be inaccurate in the context of employment to describe as ‘temporary’ a condition which was likely to last for a number of years.  Hence the two elements of degree of likelihood of improvement and time-span for that improvement, should be weighed together in determining what is permanent and what is temporary.  The greater the likelihood of substantial improvement and the earlier that it is likely to occur, the more accurate will be a ‘temporary’ label.  The longer the period and the less probable the improvement, the more appropriate will be a finding of permanent incapacity.”

16.The comments of Woodward J, quoted above, must be read in the light of the provisions of the Social Security Act 1947, with which they were concerned.  Under that Act pensions and benefits were payable for the purpose of affording a measure of support for people who usually fitted into at least one of three categories, namely;

(i)Permanent incapacity for work (Invalid Pension);

(ii)Temporary incapacity for work (Sickness Benefit);

(iii)Capacity for work and reasonable attempts to obtain work, without success (Unemployment Benefit).

Administration of the Act requires that distinctions be drawn between the three categories.  The drawing of the dividing lines between the categories was of necessity somewhat artificial and arbitrary.  The Act intended that all relevant forms of incapacity had to fall on one side or the other of that line.  Thus, an incapacity which was not temporary was automatically permanent.

17.There is no such concept in sections 24 or 25 of the VEA.

18.In the case of Mr. Leigh, he is being paid pension at the Special Rate irrespective of whether his incapacity is temporary or permanent.  The only usual difference between temporary or permanent payment at the Special Rate is that a person who is granted a permanent payment of pension at the Special Rate is unlikely, in practice, to ever be re-assessed.

19.The Tribunal was referred by Mr. Stoner to a part of the Minister’s speech on the occasion of his introducing the Repatriation Legislation Amendment Bill 1985 (Volume H of R 142, 13-31 May 1985, page 2646) in which he said that the purpose of the Special Rate of pension is to provide for severely disabled veterans of a relatively young age “who could never go back to work and could never hope to support themselves or their families”.

20.I take the view that “permanent” in the context of sections 24 and 25 of the VEA means for a period longer than just a few years hence.

21.I find that Dr. Rogers has been too pessimistic in his appraisal of the chances of Mr. Leigh’s recovery or improvement.  It would be highly speculative in a case of this type to say that there will never be any improvement.

22.I prefer the more optimistic approach of Dr. Cook.

23.I am conscious of the views of both psychiatrists that it would not be in the best interests of Mr. Leigh to have him subjected to regular re-assessments.  I believe that the decision of the VRB to specify that re-assessment not take place before 25 August 2009 to be perfectly reasonable.

24.The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           B. Hitchcock, Personal Asst

Date/s of Hearing  3 August 2005 
Date of Decision  28 October 2005
Counsel for the Applicant          Mr. D. Honchin
Solicitor for the Applicant           Purcell Taylor Lawyers
Respondent   Mr. J. Stoner, departmental advocate