May and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2588

May and Repatriation Commission (Veterans' entitlements) [2017] AATA 2588 (24 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/2564
Re:Ronald May
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mr D. J. Morris, Member
Date:24 November 2017
Place:Melbourne

The reviewable decision dated 12 April 2016 is affirmed.
........................................................................
D. J. Morris, Member
VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – whether veteran prevented from war-caused conditions alone from continuing to undertake remunerative work – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Veterans Entitlements Act 1986, ss 23, 24, 104
Cases
Leane v Repatriation Commission [2004] FCAFC 83
Redden and Repatriation Commission [2015] AATA 273
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) FCAFC 124
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Mr D. J. Morris, Member
24 November 2014
BACKGROUND

The Applicant, Mr Ronald May, receives a disability pension under the Veterans Entitlement Act 1986 (the ‘VEA’). On 3 July 2012 Mr May made entitlement claims for alcohol dependence and depressive disorder and an application for an increased rate of pension. On 19 September 2012 Mr May’s entitlement claims were refused by the Repatriation Commission (the ‘Commission’) and his pension was assessed as 80 per cent of the General Rate.
The Respondent’s Statement of Facts and Contentions stated that on 6 December 2012 Mr May applied for review by the Veterans’ Review Board (the ‘VRB’). On 17 April 2014 the VRB affirmed the entitlement decisions and on 9 December 2014 the VRB assessed pension at 100 per cent of the General Rate with effect from 3 July 2012.
On 11 August 2014 Mr May applied to the Administrative Appeals Tribunal (the Tribunal) for review of these decisions. On 28 April 2015 Senior Member Handley made an order under section 42C(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that alcohol dependence and depressive disorder were war-caused diseases with effect from 3 April 2012 and that Mr May did not suffer from post-traumatic stress disorder (PTSD). The Tribunal remitted assessment of the rate of pension to the Respondent. On 11 June 2015 a delegate of the Commission decided that Mr May’s disability pension is to be continued at 100 per cent of the General Rate. On 17 June 2015 Mr May sought review of that decision by the VRB.
On 12 April 2016 the VRB set aside the Commission’s decision and substituted a decision that Mr May’s pension continue at 100 per cent of the General Rate until 2 February 2014 and then at 100 per cent with the Extreme Disablement Adjustment (EDA) Rate, with effect from 3 February 2014.
Mr May applied to the Tribunal for review of the VRB’s 12 April 2016 decision and contended that his pension should be increased to the Special Rate. The hearing was held on 10 and 11 August 2017. Ms Fiona Spencer of counsel appeared for the Applicant. Mr Ken Rudge, an advocate from…

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

Case: [2017] AATA 2588
Decision Date: 24 November 2017

CaseChat Overview and Summary

This matter came before the Tribunal concerning Mr May's application for the Special Rate of pension under the *Veterans' Entitlements Act 1986* (VEA). The core of the dispute revolved around whether Mr May was prevented from engaging in remunerative work due to war-caused conditions, as required for the Special Rate. The Tribunal considered evidence regarding Mr May's extensive career in the Royal Australian Navy and subsequently in the merchant navy, where he served until 2002. He presented evidence of various health conditions, including sleep apnoea, neck pain, headaches, and a right shoulder condition.

The legal issue before the Tribunal was to determine if Mr May's incapacity to engage in remunerative work was solely attributable to war-caused conditions. This required the Tribunal to assess whether any other factors contributed to his inability to return to work, and if so, whether those factors, even if secondary, would preclude him from receiving the Special Rate. The Tribunal also had regard to the principle that "seeking" remunerative work, as referred to in section 24(2)(b) of the VEA, necessitates an honest attempt to engage in such work.

The Tribunal reasoned that while Mr May had experienced a shoulder injury, the evidence indicated it had healed after surgery and physiotherapy, and he did not believe it would prevent him from performing minor lifting or cleaning duties. His sleep apnoea was considered well-managed with a CPAP machine. Crucially, the Tribunal found that age and time out of the workforce were not preventative factors, citing expert evidence that the merchant navy industry did not discriminate based on age and that Mr May's qualifications and reputation remained in demand. The Tribunal also noted that Mr May and his wife had explored purchasing a motel but decided against it due to financial risk, a factor given equal weight to medical conditions by Mrs May.

Ultimately, the Tribunal was not satisfied that Mr May was prevented from returning to work solely due to war-caused conditions. However, after considering the specific circumstances, the Tribunal affirmed the reviewable decision of 12 April 2016, which maintained Mr May's pension at 100 per cent of the General Rate with the Extreme Disablement Adjustment from 3 February 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Applicant drew the Tribunal’s attention to the unreported decision of the Full Court of the Federal Court Leane v Repatriation Commission (delivered 31 March 2004) where it was held that “seeking” to engage in remunerative work referred to in section 24(2)(b) of the VEA requires that the veteran honestly be trying to engage in remunerative work. The Applicant’s evidence Mr May gave evidence about his career in the Royal Australian Navy, the ships of Her Majesty’s Australian fleet on which he served, and his 1983 discharge after 20 years’ service, leaving in the rank of Chief Petty Officer. After discharge, he then worked for a time at the Naval & Military Club, the Dandenong Workers’ Club and the Mordialloc RSL. From 1985 until 2002 he served in the merchant navy. He told the Tribunal that he had had five employers in the merchant navy including working for TT-Line on the Bass Strait ferries. He predominantly obtained positions on ships by being on a database that the Maritime Union of Australia (MUA) maintained for prospective employers to know who was available, and the skills and experience they had. He said that, while others sometimes did, he never declined a job when offered one from 1985 until he ceased work in 2002. He told the Tribunal that he was chosen by the Maritime Union and recommended to Woodside Energy to help set up a new ship that company was acquiring, the Cossack Pioneer, as one of two Chief Stewards. His duties were being in charge of accommodation, ordering stores and food, maintaining accounts and cleaning recreation rooms. He said he also made up cabins for senior crew. His role gradually became more supervisory as the crew expanded. He gave evidence about the health conditions he has. He said that he had been diagnosed with sleep apnoea and used a CPAP machine. He said that he had neck pain from a non-aligned jaw but did not remember having neck pain at the time he worked for Woodside. He said that he had headaches from a young age which made him feel “fuzzy” and that he got them when he became stressed. He said that he had never taken time off because of his headaches. He said that he had had a right shoulder condition and gave evidence that he underwent surgery performed by Mr Henry Byrne, orthopaedic surgeon. The injury was not as bad as initially thought and after extensive physiotherapy he said he was much improved. When asked if he thought his right shoulder condition would prevent minor lifting or cleaning duties (such as he had as a Chief Steward), Mr May said he did not think there would be any continuing effect as the shoulder was fully healed. Mr May was asked about the events at Woodside that led him to stop working in 2002. He told the Tribunal that he had been working for the company since 1996. The job had steadily become more complex and he was finding it “difficult to keep up with the work – it was demanding. They put 30 to 40 more on a day without extra staff and made cabins out of containers” to accommodate additional people on-board.

Decision

Reasons for decision

After carefully considering the specific circumstances of Mr May’s case, the Tribunal believes that the continuation of Mr May’s pension at 100 per cent of the General Rate with the Extreme Disablement Adjustment from 3 February 2014 is the correct decision.DECISION The reviewable decision of 12 April 2016 is affirmed.

Ratio Decidendi

Legal Principle Established

In cross-examination, Mrs May said she and the Applicant had gone to a credit union to explore the purchase of a motel at Harrietville but they concluded it was too much of a financial risk, so did not proceed further with the idea. In answer to a question from Ms Spencer about whether the decision not to pursue the bed and breakfast business was due to financial risk or Mr May’s medical conditions, Mrs May responded that she gave the two factors equal weight in the decision they came to.Consideration If the Tribunal is satisfied that Mr May was prevented from returning to work because of war-caused conditions alone, then his claim may succeed. If, however, other preventative factors are found to have contributed to him not returning to work, then these other factors, even if of secondary importance and even if they, together, do not combine to prevent a veteran engaging in remunerative work, Mr May’s application for Special Rate cannot succeed. The Respondent submits that Mr May’s right shoulder condition contributes to his incapacity to work. The evidence was that Mr May suffered a mechanical injury to his shoulder in a domestic incident and that Mr Henry Byrne performed corrective surgery. After intensive physiotherapy, the shoulder healed. Mr May’s evidence about his duties as Chief Steward were that they were largely supervisory and involved extensive paperwork, recording and ordering stores, and so on. He said that he did clean and make up cabins for some senior crew but that was his choice because he wanted them to be done well. On the medical evidence before the Tribunal and on this account of his duties, I am not satisfied that Mr May’s shoulder injury would, by itself, necessarily be a preventative factor in him returning to work. In terms of Mr May’s sleep apnoea, the evidence of the Applicant was that it was well managed now that he has a CPAP machine which he said he had been using since April 2015. There was scant other evidence on this condition and Dr Haller was unaware of it but, on the whole, I am not satisfied that this condition is a preventative factor in Mr May returning to work. Age and time out of the workforce were also submitted by the Respondent as factors. Evidence was given to the Tribunal that there is no age limit for merchant navy crew. In particular, the statement (Exhibit A5) of Mr Michael Doleman, International Executive Officer, Maritime International Federation, dated 10 April 2017 is relevant. He states:For many years there has been no age discrimination in the industry. Quality seafarers (such as Ron) who are fit and meet the medical requirements are able to obtain employment regardless of their age or when they last previously worked. The Tribunal also had before it a statement (Exhibit A4) of Mr John Higgins, former National President of the MUA, dated 4 April 2017 who states that he was, at the time of making the statement, serving on a bulk carrier:Specifically, I do not believe that Ron’s age or the fact that he last undertook work in the early 2000s would prevent him from obtaining employment in the Merchant Navy to the current date. He has a very good reputation in the industry which would have continued to hold him in good stead and, aside from his reputation, his qualifications and experience continue to be in demand in the Merchant Navy. Furthermore, I am older than Ron and remain employed in the industry.