McPhee and Repatriation Commission - [2001] AATA 447

DECISION AND REASONS FOR DECISION [2001] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1821

VETERANS' AFFAIRS DIVISION         )
           Re      Roderick McKenzie MCPHEE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M J Sassella

Date25 May 2001
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  M J Sassella
  Senior Member

CATCHWORDS
VETERANS' AFFAIRS – application for special rate pension – was Applicant unable to work 8 hours or more – was Applicant unable to perform remunerative work by reason of accepted disabilities alone – importance of other factors reducing ability to work – relevance of ability to perform volunteer work

Veterans' Entitlements Act 1986 – ss24(1)(b), (c), s24(2)(a) and (b)

Birtles v Repatriation Commission (1991) 33 FCR 290
Banovich and the Repatriation Commission (1986) 89 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Fry v Repatriation Commission (1997) 47 ALD 776
Hanrahan and Repatriation Commission (1992) 26 ALD 766
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)

REASONS FOR DECISION

Senior Member Sassella

Roderick McKenzie McPhee (the "Applicant") has three accepted disabilities, anxiety disorder of the post traumatic stress disorder ("PTSD") type, irritable bowel syndrome ("IBS") and bilateral sensorineural hearing loss ("BSHL"). He had been granted a disability pension payable at 70 percent of the general rate. On 12 June 1997 the Applicant lodged a claim with the Repatriation Commission ("the Respondent") for an increase in his disability pension (T9). On 29 August 1997 the application was refused by a delegate of the Respondent (T14).
On 12 September 1997 the Applicant applied to the Veterans' Review Board ("VRB") for review of this decision (T15). On 21 September 1999 the VRB set aside the decision of the delegate and substituted a decision that the pension be assessed at 90 percent of the general rate (T2). On 3 December 1999 the Applicant lodged an application with the Tribunal for review of the decision of the VRB (T1).
At the hearing the Applicant was represented by Counsel Mr Neale Dawson who was instructed by Whyburn and Associates. The Respondent was represented by Ms Philippa Hook from the Department of Veterans' Affairs ("DVA") advocacy team.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (TD1) were admitted as evidence along with the following material:
Exhibit Number     Description Date
A1      Statement of the Applicant 6 March 2000
A2      Statement of the Applicant 20 April 2000
A3      Report of Dr Hayes 21 March 2000
A4      Report of Dr Hayes 11 April 2000
A5      Letter, Certificate and Course Report relating to the Applicant's Appointments as an officer of the cadets in the Australian Cadet Corps           14 August 1985 and November-December 1988
R1      Report of Dr Lee     29 March 2000
R2      Report of Dr Anderson      30 March 2000
R3      Report of Professor Sambrook     31 March 2000

Applicant's background

The Applicant was born on 12 October 1949. He was adopted as a child and raised near Maclean on a dairy farm. He completed…

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 McPhee and Repatriation Commission

Details

AGLC: McPhee and Repatriation Commission [2001] AATA 447
Case: [2001] AATA 447
Decision Date: 25 May 2001

CaseChat Overview and Summary

The case involves the Applicant, McPhee, applying for a special rate pension under the Veterans' Entitlements Act 1986. The Repatriation Commission denied the application, prompting McPhee to seek judicial review. The central issue before the court was whether McPhee was unable to perform remunerative work solely due to his accepted disabilities, as required by the statute. The Applicant argued that his disabilities alone prevented him from working, but the Commission contended that other factors also significantly impaired his ability to work.

The court examined the medical evidence and testimony provided by McPhee and his medical practitioners. The Applicant's medical history included a fractured and dislocated right knee, severe post-traumatic stress disorder (PTSD), bilateral sensorineural hearing loss (BSHL), and irritable bowel syndrome (IBS), among other conditions. While the Applicant claimed these disabilities alone made him unemployable, the court considered additional factors such as his lack of a subcontractor's license, a reputation for drunkenness, and limited job opportunities. The court also noted that McPhee had engaged in volunteer work, which suggested he could perform work activities in a group setting, contradicting his claim of being unable to work with others.

The court concluded that McPhee's disabilities were not the sole reason preventing him from working. Other factors, such as his lack of a subcontractor's license and his reputation, significantly contributed to his inability to secure employment. Therefore, the court held that McPhee did not meet the statutory requirement of being unable to perform remunerative work due to his accepted disabilities alone. The decision of the Repatriation Commission was affirmed, denying McPhee's application for a special rate pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Pattison said that the Applicant saw Dr Hayes every two weeks but that she would prefer he saw him every month. She said that the Applicant got stressed out in the interim. She said that the Applicant had a fear of drugs and what they would do to him if he got upset. Medical Evidence In a medical report by Dr Allcock submitted to the DVA on 30 January 1987 (T5) it was noted that the medical history of the Applicant included a fracture and dislocation of the right knee. It was noted that the Applicant was permanently unemployable for heavy labouring work. It was also stated that, if the Applicant was not permanently unemployable, then he would be severely incapacitated. Dr Hope on 12 February 1996 (T8) reported on the accepted conditions of the Applicant. He did not make any comments in relation to occupational ability except to state in relation to PTSD that the Applicant was retired. Dr Hope wrote a further report on 7 July 1997 where he reported again on the accepted conditions of the Applicant. On this occasion, in relation to PTSD, he wrote that the condition affected the Applicant's occupational activities because he "can't work". There was no reference to occupation as affected by the other conditions. On 30 July 1997 audiometrist Peter Gray reported that the Applicant was suffering from a mild to moderately severe BSHL, and that the left was significantly weaker than the right (T11). Dr Hope wrote a further report assessing the Applicant's work ability which, though undated on the document, was noted as being produced on 12 September 1997 in the T documents index (T16). When describing the effects of the war caused disabilities on his ability to work he stated that the PTSD caused an inability to concentrate, the hearing loss made it difficult to work with the public and the IBS caused frequent diarrhoea. He stated that other factors outside of the accepted disabilities that made it difficult to work were dermatitis of the hands, which affected his ability to hold anything, and conjunctivitis which made it difficult to read. He stated in conclusion that all treatments and specialists had been tried. A note by Dr Klyn dated 12 January 1998 stated that a GARP impairment rating of 30 points was still reasonable for the Applicant's PTSD (T18). Dr Hope wrote a further note on 14 September 1998 (T20) saying that the Applicant's disability had further worsened to the extent that he was admitted for treatment between 17 April and 14 May 1997. He suggested that a GARP rating of 45 points may be more appropriate for the Applicant's PTSD. Dr Hope wrote another note dated 9 November 1998 stating that the Applicant has severe incontinence and tinnitus (T21). Dr Hayes (psychiatrist) produced a report on 25 September 1998 (T22) to the effect that the accident the Applicant suffered in 1985, which caused a fractured knee, made it very difficult for him to return to his previous employment. He further stated that whilst the Applicant's age and accident limited his ability to work in his previous career, his symptoms of PTSD, particularly irritability, impaired concentration and low grade depression, have prevented him from pursuing other occupations.

Decision

Reasons for decision

As regards the carpentry trade, it is clear from the Applicant's own evidence that there are several factors other than his accepted conditions that limit his ability to work. These factors included not having a subcontractor's licence, his reputation as a drunk, and a general lack of suitable work. The Federal Court case of Cavell v Repatriation Commission (1988) 9 AAR 534 indicates that the decision maker must look to practical considerations. The test is certainly not absolute and depends on common sense. In the Tribunal decision ReHanrahan and Repatriation Commission (1992) 26 ALD 766 it was held that a bricklayer was prevented from working due to factors such as non-accepted disabilities, low employment and a long time out of the workforce. Although Mr McPhee is not claiming that his employment is restricted by his non-accepted disabilities, he certainly has very restrictive employment opportunities. However it would not be necessary to expect him to have to start his own business at this point merely because he does not have a sub-contracting license. Further, he has made significant efforts to combat his reputation for drunkenness and this should assist him in his application. What goes against the Applicant is the fact that he has performed work activities in a group in all his voluntary efforts. It would be contradictory for the Tribunal to then say that he is finally unable to work at all because he simply cannot work with others. As he has no licence and, it would seem, no intention of becoming self-employed, this is the final consideration. ConclusionIt is on this basis that the Tribunal considers that the Applicant fails to qualify under s24(1)(c) of the Act. He is not unable to perform remunerative work due to his accepted disabilities alone and therefore the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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