Leigh v Repatriation Commission

[2006] FCA 395

FEDERAL COURT OF AUSTRALIA

Leigh v Repatriation Commission [2006] FCA 395

VETERANS AFFAIRS – pension, meaning of permanently incapacitated, meaning of temporarily incapacitated, meaning of foreseeable future, where tribunal preferred evidence of one expert to that of another, whether tribunal misunderstood the question posed.

Veterans Entitlements Act 1986 (Cth) s 24, s 24(1)(b), s 24(1)(c), s 24(1)(d), s 24A, s 25

McDonald v Director General of Social Security (1984) 6 ALD 6, considered

ADAM LEIGH v REPATRIATION COMMISSION
QUD 515 OF 2005

DOWSETT J
12 APRIL 2006
BRISBANE (HEARD IN TOWNSVILLE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 515 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS APPEALS DIVISION
CONSTITUTED BY DEPUTY PRESIDENT MULLER

BETWEEN:	ADAM LEIGH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	12 APRIL 2006
WHERE MADE:	BRISBANE (HEARD IN TOWNSVILLE)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 515 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS APPEALS DIVISION
CONSTITUTED BY DEPUTY PRESIDENT MULLER

BETWEEN:	ADAM LEIGH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	DOWSETT J
DATE:	12 APRIL 2006
PLACE:	BRISBANE (HEARD IN TOWNSVILLE)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Deputy President of the Administrative Appeals Tribunal (the “AAT”) in a matter arising under the Veterans Entitlements Act 1986 (Cth) (the “Act”).  The applicant receives a pension pursuant to the Act.  The respondent accepts that he will be entitled to receive that pension at a special rate if, as required by s 24(1)(b),(c) and (d) of the Act:

   ‘(b)(he) is totally and permanently incapacitated, that is to say, (his) incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render (him) incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

   (c)(he) 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 (he) was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on (his) account, that (he) would not be suffering if (he) were free of that incapacity; and

   (d)section 25 does not apply to(him).’

2. Sections 24A and 25 are also relevant.  They provide:

   ‘24A Continuation of rates of certain pensions

   (1)Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

   (a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

   (b)in the case of a veteran to whom section 23 applies:

   (i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or

   (ii)in the case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking – the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

   (c)in the case of a veteran to whom section 24 applies – the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

   (2)Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme or section 115D applies to the veteran.’

   25       Temporary payment at special rate

   (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.

   (2)Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).

   (3)The Commission may, under this section:

   (a)determine a period that commenced before the date on which the determination is made; and

   (b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.’

3. In other words, a veteran who satisfies the requirements of s 24 will be entitled to receive the pension at a special rate.  That entitlement will continue unless s 24A operates to terminate it.  Where a veteran would be entitled to the special rate pursuant to s 24, save for the fact that his or her incapacity is not shown to be permanent, the special rate will be payable pursuant to s 25 for the period during which the incapacity is likely to continue.

4. The applicant was born on 7 May 1980 and joined the Australian Regular Army on 9 March 1999.  He completed two tours of duty in East Timor, the first from 20 September 1999 to 19 February 2000 and the second from October 2001 to April 2002.  The respondent accepts that as a result of events experienced during his service, the applicant now suffers from the following conditions:

   ·Post traumatic stress disorder;

   ·Alcohol dependence or abuse;

   ·Sensorineural hearing loss of the right ear; and

   ·Tinnitus in the right ear.

5. He is presently unable to work because of these incapacities and was assessed as entitled to a pension at the general rate with effect from 7 April 2003.  On 26 February 2004 the respondent, pursuant to s 25, increased the rate of pension to the special rate with effect from 11 December 2003 and until 11 December 2005.  On 25 August 2004 the Veterans Review Board varied the decision by determining that payment at the special rate should continue until 25 August 2009.  The applicant applied to the AAT for review of that decision, seeking a determination in his favour pursuant to s 24.  At the hearing there was a conflict between the evidence of two psychiatrists, Dr Rogers, who had treated the applicant, and Dr Cook, who examined him at the request of the respondent.  Dr Rogers concluded that:

   ‘With respect to definitions of permanence under Section 25 of the relevant Act, I believe his condition is consistent with this, namely that his incapacity is likely to continue for an indefinite period given the above experience.  It should be noted that permanence does not refer to a condition incapable of responding to treatment at some stage but certainly one that is static and constant and likely to persist for an indefinite period in the future.’

6. In his oral evidence Dr Rogers predicted that if the applicant were re-assessed in four years time, ‘…we would probably be looking at the same situation again’.  He did not expect any substantial improvement in the applicant’s condition.

7. Dr Cook accepted that the applicant was suffering from a post-traumatic stress disorder, a major depressive disorder and alcohol dependence.  He observed:

   ‘… (T)his certainly has affected his ability to undertake remunerative work.  At the present time he cannot work even for eight hours per week, and I do not see that improving in the short term.  However the possibility of improvement still exists and, in my opinion, there is an approximate 50% chance that Mr Leigh 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.’

8. Dr Cook did not accept that the applicant was permanently incapacitated for the purposes of s 24.  Having regard to his age and other positive aspects of his background, Dr Cook considered that there were prospects of some significant improvement.  However he accepted that permanent incapacity was a possibility.  The reference in Dr Cook’s report to limited part-time work reflected his practice with respect to “return to work” programs.  He would recommend that a patient return to work for about twelve hours per week, four hours per day for three days.  Thereafter, he would consider increasing it to perhaps 20 hours a week, with a view to seeing how the patient performed.  Dr Cook did not expect that the applicant would ever fully recover but hoped that he might return to work and remarry successfully.

9. In his reasons the Deputy President set out the applicant’s history, including his military history, the development of his symptoms and the diagnosis of his condition.  He then recorded the history of the respondent’s dealings with the claim and identified the issues before him as:

   ‘(i)whether Mr Leigh is permanently incapable of undertaking remunerative work, within the meaning of those terms in section 24(1)(b) of the [Act] 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 [Act].’

10. The Deputy President summarised the legislative provisions and the arguments put to him by both sides, together with the evidence including, in particular, that of Dr Rogers and Dr Cook. He then addressed the meaning of the word ‘permanent’ in s 24 by reference to dictionaries and to the following passage from the reasons of Woodward J in McDonald v Director General of Social Security (1984) 6 ALD 6 at 13:

    ‘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 improvements 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 …

    This test involves two questions.  The first is whether it is more likely than not that the disability will terminate (or fall below 85% 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 …’

11. The Deputy President noted that those observations were made in the context of the Social Security Act 1947 which provided for invalid pensions (payable to workers who were permanently incapacitated), sickness benefits (payable to persons who were temporarily incapacitated) and unemployment benefits (payable to persons who were capable of work but unable to find any).  He considered that the Social Security Act required that persons receiving benefits fall into one of these three classes and that ‘an incapacity which was not temporary was automatically permanent’.  He contrasted that position with that which obtains under ss 24 and 25 of the Act.

12. The observations made by Woodward J may well be applicable for present purposes, subject to two qualifications.  Firstly, invalid pensions, sickness benefits and unemployment benefits are not analogous to pensions (including benefits payable pursuant to ss 24 and 25), payable to veterans who suffer from war-caused injuries or diseases.  Sickness benefits, the invalid pension and unemployment benefits are properly characterised as social security payments.  They do not reflect any particular obligation owed by the Commonwealth to recipients other than the general social duty to ensure the well-being of all citizens, which duty is discharged by provision of the benefits prescribed in the Social Security Act.  However a pension payable pursuant to Part 2 of the Act is by way of compensation for injury or disease incurred in, or as the result of, war service.  See s 13.  In other words, it recognises the special obligation of the Commonwealth to compensate a person who has an injury or disease as the result of war service and any attendant incapacity.  A determination pursuant to either s 24 or s 25 is only as to the rate at which the pension is paid.  Any applicant for a benefit pursuant to either section will be entitled to a pension under some other provision of Pt 2 of the Act.  The second distinction which I would draw between the regime prescribed by ss 24 and 25 and that to which the decision in McDonald related is that Parliament has clearly distinguished between persons who satisfy the requirements of s 24 and those who only satisfy the requirements of s 25.  The obligation of the Administrative Appeals Tribunal, and of this Court, is to give effect to that distinction, not to achieve consistency in the interpretation of terms as used in this Act and in other legislation.  That was, I think, the point which the Deputy President was making concerning the applicability of the remarks in McDonald to the present case.

13. Whether or not a particular incapacity is permanent is a question of fact.  I do not understand Woodward J to have purported to lay down an exhaustive definition of the word “permanent”.  If the Deputy President misunderstood the question posed for his consideration, then he erred in law.  However it is not to the point that he may have considered that words used by Woodward J in an earlier case, concerning other legislation, were inapposite to describe the notion of permanence as it is used in the Act. 

14. The Deputy President concluded that the word “permanent”, when used in s 24, means ‘for a period longer than just a few years hence’.  Implicit in that conclusion is the proposition that a demonstrated incapacity for ‘a few years’ would not, at least in this case, be a basis for a favourable determination under s 24.  The Deputy President placed weight upon the fact that in the relevant second reading speech in connection with the Repatriation Legislation Amendment Bill 1985 (Volume H of R 142, 13-31 May 1985, page 2646) the Minister observed that the purpose of the special rate of pension was 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’.  Use of the word “never” supports the Deputy President’s approach.  However, he did not say that s 24 requires that a decision-maker be satisfied that the veteran’s incapacity will continue for the rest of his or her life.  In this respect his reasons reflect a similar approach to that adopted by Woodward J.

15. In the present case, the Deputy President preferred the evidence of Dr Cook to that of Dr Rogers.  In other words, he accepted Dr Cook’s evidence that there was a 50 percent chance that the applicant would be able to re-enter the workforce over the next four or five years, although perhaps in a limited or part-time capacity.  The limited or part-time capacity was that referred to by Dr Cook in his evidence and certainly exceeded the eight hours per week limit prescribed for the purposes of s 24.  The Deputy President’s preference for the evidence of Dr Cook over that of Dr Rogers is beyond challenge in these proceedings.  Given that view of the evidence, it was open to the Deputy President to conclude that he was not satisfied as to the permanence of the applicant’s condition, and therefore to treat his application as falling within s 25 and not s 24.  In other words, it cannot be said that as a matter of law the applicant’s incapacity, as found by Dr Cook, was permanent for the purposes of the Act.  The Deputy President’s reasons disclose no error of law.  His conclusions were fairly open on his view of the evidence.

16. The appeal must be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             12 April 2006

Counsel for the Applicant:	Darin Honchin
Solicitor for the Applicant:	Purcell Taylor Lawyers
Counsel for the Respondent:	Madeline Brennan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 March 2006
Date of Judgment:	12 April 2006