McLaughlan and Repatriation Commission - [2001] AATA 10

DECISION AND REASONS FOR DECISION [2001] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/25

VETERANS' APPEALS DIVISION       )
           Re      Brian McLAUGHLAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Mr M Sassella, Senior Member

Date 11 January 2001
PlaceSydney

Decision The Tribunal – 1. Sets aside those parts of the decisions of delegates of the Repatriation Commission ("the Respondent") dated 11 September 1996 and 14 March 1998 that assessed pension payable to Brian Matthew McLauchlan ("the Applicant") at 100 percent of the General Rate; 2. Substitutes therefor its decision that the Applicant is entitled to be paid pension at the Special Rate pursuant to s24 of the Veterans' Entitlements Act 1986 with effect on and from 6 June 1995.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – assessment – Special Rate – whether unable to undertake remunerative work because of accepted disabilities alone – whether suffered loss of salary or wages - whether ceased work for reasons other than accepted disabilities – whether intended to retire aged 60 years – whether forced to take redundancy

Veterans' Entitlements Act 1986 – s24(1)(c)

Banovich v Repatriation Commission (1986) 69 ALR 395
Birtles v Repatriation Commission (1991) 33 FCR 290
Chambers v Repatriation Commission (1995) 55 FCR 9
Repatriation Commission v Bowman (1981) 38 ALR 650
Starcevich v Repatriation Commission (1987) 18 FCR 22

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Mr M Sassella, Senior Member

This is an application for review of two decisions dated 11 September 1996 and 14 March 1998 made by a delegate of the Repatriation Commission ("the Respondent") which were subsequently affirmed by the Veterans' Review Board ("the VRB") on 27 October 1998. All applications for review were in time.
The first decision determined that disability pension be granted to Brian McLaughlin ("the Applicant") at 100 per cent of the General Rate with effect from 6 June 1995, following the acceptance of bilateral sensorineural hearing loss and post traumatic stress disorder ("PTSD"). The second determination continued disability pension at 100 per cent of the General Rate, following the acceptance of the conditions of alcoholic fatty liver and gastro-oesophageal reflux disease. The Applicant's rejected disabilities are lumbar spondylosis and peptic ulcer disease.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and tendered as evidence reports of Dr M Baz, occupational physician, dated 12 April 1999 and 18 August 1999 (exhibit A), and a Schedule of Actual Severance & Accrued Entitlements Pay (exhibit B). The Tribunal caused the Applicant's TAFE academic transcript to be included as an exhibit (T3). The following documents were tendered as evidence on behalf of the Respondent -

Report of Dr M Burns, occupational physician, dated 13 August 1999 (exhibit 1);
Prospect Electricity "Performance Appraisal and Development Review" Pilot Study (exhibit 2);
Letter from Applicant to his solicitor dated 27 July 1999 with sundry attachments (exhibit 3)…

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 McLaughlan and Repatriation Commission

Details

AGLC: McLaughlan and Repatriation Commission [2001] AATA 10
Case: [2001] AATA 10
Decision Date: 11 January 2001

CaseChat Overview and Summary

The case of McLaughlan and Repatriation Commission involved the applicant, Brian McLauchlan, seeking a Special Rate under the Veterans' Entitlements Act 1986 due to his inability to undertake remunerative work because of his accepted disabilities. The Repatriation Commission contested the applicant's claim, arguing that his disabilities were not the sole reason for his inability to work and that his decision to retire at 60 and purchase a home at Yamba were the true reasons for his cessation of work. The applicant, who served in the Royal Australian Navy and later worked in various positions at Prospect Electricity, argued that his Post-Traumatic Stress Disorder (PTSD) and other disabilities caused by his service made it impossible for him to secure employment.

The primary legal issues the court had to decide were whether the applicant's inability to undertake remunerative work was due solely to his accepted disabilities, whether he had suffered a loss of salary or wages, and if his cessation of work was for reasons other than his accepted disabilities. The court had to assess whether the applicant's PTSD and other service-related disabilities were the substantial cause of his inability to work and if his decision to retire and purchase a home were genuine reasons unrelated to his disabilities.

The court examined the applicant's military service and subsequent employment history, noting his struggles with PTSD and other disabilities. It considered the statutory declaration from the applicant's wife, which detailed his behavioural changes and the impact on his family life. The court also reviewed the evidence regarding the applicant's employment at Prospect Electricity, where he was gradually moved to positions with less interaction with others due to his condition. The court concluded that the applicant's disabilities were indeed the substantial cause of his inability to secure remunerative work. It found that his decision to retire and purchase a home was not the true reason for his cessation of work, but rather a consequence of his disabilities.

The court ordered that the applicant be granted a Special Rate under the Veterans' Entitlements Act 1986, acknowledging that his accepted disabilities were the primary reason for his inability to undertake remunerative work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant's case is that he was unable to obtain remunerative work because of his PTSD and that he was forced to take a voluntary redundancy at the age of 57 years. The Respondent contended that the Applicant's accepted disabilities were not the substantial cause of his inability to work. Rather, his intention to retire from work at the age of 60 years and the decision to purchase a home at Yamba two years before he accepted redundancy reflected the true reasons why the Applicant ceased work at the time he did.evidence The Applicant was born on 11 June 1937. He enlisted in the Royal Australian Navy on 26 May 1958 and was discharged on 31 July 1978. After his service he worked as a maintenance supervisor and foreman for Kentucky Fried Chicken for 5 years. He resigned from the position because of conflict with his supervisor. The Applicant then worked for Prospect Electricity as a senior security officer. He was responsible for security and maintenance of the head office building. He worked in that position for 4 months. He then became a supervisor of a new section known as CARES, that helped pensioners and people on lower incomes to lower their electricity bill. He supervised a team of about seven people and remained in that role for approximately 7 or 8 months. He then worked in the administrative services section as office maintenance supervisor for about eight years. After this he was transferred to the new head office building site at Huntingdon as Technical Services Clerk of Works, and Prospect's representative on site. He remained in that position until he left Prospect Electricity on 25 March 1994. The Applicant said that during his time at Prospect Electricity he was advised that as a supervisor he did not handle staff very well. He said that from time to time he was told by his manager to "lay off a bit" with respect to his behaviour. The Applicant said that after the first 12 to 18 months he became very short tempered at work and did not get on well with others. He became critical about the people under his control. He criticised them about their performance, their manner of dress and punctuality. He said that he tried to ensure that his behaviour was acceptable but he said on a number of occasions he was allocated to jobs that removed him from supervising staff for "months on end". He said he considered at the time that his behaviour was attributable to his Naval experiences, although he now believes it was due to stress. The Tribunal notes that evidence regarding his behaviour was consistent with the evidence provided by others. A Statutory Declaration made by his wife noted (T29, p81) –I have been the spouse of Brian Matthew McLauchlan … since 1.11.58. Throughout the first five or so years of our marriage, Brian was an open, loving, even tempered husband and father to his two sons. His communication skills within and without the family environment were high, his drinking habits were moderate and he was a happy and self assured family man.During the 1960's Brian's various ships were posted to Vietnam with the last trip taking place in 1966. During and after this period, Brian began displaying symptoms of extreme anxiety. He was regularly unable to sleep a complete night without waking up from sleep in a state of nervousness and tossing around, unable to return to rest. Other changes in her personality began to appear in the form of withdrawal into himself, cessation of any but the most basic forms of communication, increased dependence on alcohol and sudden, unprovoked and terrifying (at least to the writer and the children) bursts of violent and explosive behaviour. He constantly complained that he distrusted his superiors and his subordinates in his job and he commenced treating family members as though they were subordinate serving members of the R.A.N. This behaviourial (sic) pattern increased to a level of severity which, in 1979 at the end of his serving term in the R.A.N. brought about my departure from the marital home and a separation of approximately 11 months.Since 1979, his sleep in constantly interrupted, he suffers severe anxiety attacks which do not appear to have any cause. His memory has deteriorated to the point where he cannot remember a simple piece of information for more than a few hours and he has been unable to overcome his general distrust of others sufficiently to enable him to carry on his employment.In his most recent position with Prospect Electricity, the symptoms described above increased to a level where they were so evident, that over the..10 year period of employment, management reassessed his situation several times and each time he was moved into a position where he had less and less contact with others. The culmination was that eighteen months prior to his departure, his superiors transferred him to the Project Team and he was physically moved to the site of their new building where he was able to work alone virtually with no face to face contact with other members of staff.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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