Little and Repatriation Commission - [2001] AATA 64

DECISION AND REASONS FOR DECISION [2001] AATA 64

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1777

VETERANS' APPEALS DIVISION )

Re HAROLD PHILLIP LITTLE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date2 February 2001
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that the Applicant is eligible for the Special Rate of pension effective 21 March 1997.

……………………..
A R Horton
Member
CATCHWORDS

VETERANS' AFFAIRS – Army service – operational service in Vietnam – accepted war caused disabilities – 100% General Rate – whether entitled to Special Rate

Veterans' Entitlements Act 1986 - ss 6,9,14,24, 28, 120(4)

Banovich v Repatriation Commission 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Birtles v Repatriation Commission (1991) 33 FCR 290
Re Bonner and Repatriation Commission (1989) 17 ALD 680
Re Hornery and Repatriation Commission (AAT 13166, 11 August 1998)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member

This is an application for review of a decision dated 10 August 1999 by the Veterans' Review Board ("the VRB") in respect of Harold Phillip Little ("the Applicant") that set aside a decision of a delegate of the Repatriation Commission ("the Respondent") dated 6 August 1997 continuing pension at 70% of the General Rate, and substituted a decision that pension be assessed at 100% of the General Rate, effective as from 21 March 1997. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 23 November 1999.
At the hearing before the Tribunal on 9 November 2000, the Applicant was represented by Mr Dawson of Counsel. Mr Wallis appeared as advocate for the Respondent. The Applicant gave oral evidence.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Statement by Harold Little dated 11 April 2000. Exhibit A1
Medical report of Dr M Baz, occupational physician, dated 26 June 2000.   Exhibit A2
Medical report of Professor D Richards, cardiologist, dated 29 February 2000.    Exhibit R1
Medical report of Dr W P Lennon, orthopaedic surgeon, dated 23 February 2000.         Exhibit R2
Report by Dr R D Lewin, consultant psychiatrist, dated 31 March 2000.      Exhibit R3
Report by Dr J Chen, consultant physician, dated 8 June 2000.        Exhibit R4
Clinical notes from Dr G Altman, consultant psychiatrist, dated 6 March 2000.     Exhibit R5
Clinical notes from Dr R D Yarrow, Fairy Meadow Medical Centre, received 4 February 2000.           Exhibit R6

ISSUES BEFORE THE TRIBUNAL

The Applicant, Harold Little, has a number of conditions accepted as being war caused. In response to a claim by the Applicant for an increase in disability pension, the Respondent decided on 6 August 1997 to continue pension at 70% of the General Rate. On 10 August 1999, the VRB set aside the decision and substituted its decision that pension be assessed at 100%…

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.

Continue reading Little and Repatriation Commission

Details

AGLC: Little and Repatriation Commission [2001] AATA 64
Case: [2001] AATA 64
Decision Date: 2 February 2001

CaseChat Overview and Summary

Little and Repatriation Commission is a case involving the determination of veterans' entitlements under the Veterans' Entitlements Act 1986. The Applicant, a veteran who served in the army and spent 11 months in Vietnam, is seeking a higher rate of pension due to his disabilities. The Repatriation Commission, as the Respondent, acknowledged the Applicant's ischaemic heart disease and other disabilities but disagreed on the extent to which these conditions prevent him from working. The primary legal issue before the court was whether the Applicant qualified for the Special Rate under the Act, given his war-caused disabilities and his ability to work. This required an analysis of the relevant sections of the Act, particularly sections 6, 9, 14, 24, 28, and 120(4), as well as precedents such as Banovich v Repatriation Commission, Starcevich v Repatriation Commission, Birtles v Repatriation Commission, Re Bonner and Repatriation Commission, and Re Hornery and Repatriation Commission.

The court had to consider whether the Applicant's disabilities, specifically his ischaemic heart disease, post-traumatic stress disorder (PTSD), and alcohol abuse, rendered him unable to undertake remunerative work for periods aggregating more than 8 hours per week. The evidence included medical opinions from Professor Richards, Dr Altman, Dr Lewin, and Dr Baz, who variously assessed the Applicant's capacity to work. The Respondent argued that the Applicant's conditions did not entirely preclude him from working, while the Applicant claimed that his disabilities were the primary reason he could not find or retain employment. The court examined the medical evidence and the Applicant's testimony to determine the extent to which his disabilities impacted his ability to work.

After reviewing the evidence and the applicable law, the court concluded that the Applicant did not meet the criteria for the Special Rate under the Act. The Applicant's ischaemic heart disease, while serious, was under control and did not significantly impede his ability to work. Additionally, the Applicant's PTSD and alcohol abuse, although significant, did not entirely prevent him from undertaking remunerative work. The court found that the Applicant could work up to 8 hours per week without significant impairment due to his conditions. Consequently, the court upheld the Respondent's decision and dismissed the Applicant's claim for the Special Rate. The decision was based on the finding that the Applicant's disabilities, while serious, did not wholly preclude him from working.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent acknowledged the view of Professor Richards, cardiologist, that the Applicant's accepted ischaemic heart disease was under control (the inference being that it had little or no bearing on his ability or otherwise to work). The Respondent agreed with Counsel for the Applicant that Dr Altman, treating consultant psychiatrist, considered PTSD and alcohol to be the significant disabilities of the Applicant, whilst Dr Lewin, consultant psychiatrist, considered that alcohol abuse prevented the Applicant from working. Counsel also referred the Tribunal to the opinion of Dr Baz, occupational physician, that the veteran is "unable to engage in paid work solely due to his accepted conditions of up to 8 hours per week" (Exhibit A2). The conditions of subsection 24(1)(b) were therefore conceded, in that the Applicant was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week for reasons of war-caused injury or disease. Thus the issue before the Tribunal was confined to the requirements of subsection 24(1)(c), as further amplified by subsections 24(2)(a) and, in the view of the Respondent, more particularly subsection 24(2)(b).FACTS AND EVIDENCE Following national service in the army, including some 11 months service in Vietnam, the Applicant returned to employment at BHP Port Kembla. After several years he resigned, citing severe stress (Exhibit A1). He was subsequently employed by IPEC Road Express from 24 April 1978 on an owner/driver basis. He states that personal depression and stress continued, that he could not associate with other drivers, his drinking binges got worse and he thought "everyone was out to get me". The Applicant underwent surgical coronary revascularisation in 1992, returning to work some months later. On examination by Professor Richards in February 2000 (Exhibit R1), he stated that whilst he experienced dyspnoea during vigorous exercise, "his heart did not affect his lifestyle otherwise." He remained with the company until 31 May 1996 (T3), when he was retrenched as a result of actions by the company to reduce costs and overheads (T4). The Respondent accepted that there is no evidence to suggest that termination of his employment resulted from a medical condition. In evidence to the Tribunal, the Applicant stated that after the termination of his employment with IPEC he looked for other work, still being in possession of his own truck. He approached the manager at Comet in Wollongong, but was unsuccessful. The manager was aware of his previous heart attack and said that in the circumstances he could not take him on. For the same reason, he was unsuccessful in an application to Brambles. He agreed with the Tribunal that the companies may not have wanted to incur compensation and other liabilities that may have arisen from his employment. In response to Counsel, the Applicant stated that he stopped looking for work on the advice of Dr Altman, his treating psychiatrist, because of his medical conditions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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