Morris and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2165

Morris and Repatriation Commission (Veterans' entitlements) [2017] AATA 2165 (14 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/1107
Re:David Morris
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:14 November 2017
Place:Brisbane

The Tribunal sets aside the decision under review, and in place of that decision, determines that the Applicant is entitled to pension at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 1 August 2015.
....................................[Sgd]....................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – application for increase in pension – whether Applicant is entitled to payment of disability pension at the Special or Intermediate Rate – PTSD – whether satisfies the “alone test” – other factors – alcohol dependence – back condition – shoulder condition – domestic circumstances – whether contributed to preventative effect- “alone test” satisfied – Applicant entitled to payment at the Special Rate - decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 19, 23, 24, 25, 28, 73, 120
CASES
Cavell v Repatriation Commission [1988] FCA 464
Hall v Repatriation Commission [1994] FCA 458
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Sharp [2017] FCA 350
Smith v Repatriation Commission (2014) 142 ALD 410
REASONS FOR DECISION
Senior Member A C Cotter
14 November 2017
BACKGROUND

Mr David Morris is 60 years of age.[1]
[1] Exhibit 4, Statement of David Morris dated 14 July 2017, [1].
In March 1975, at the age of 18, he joined the Australian Regular Army. He continued to serve until his discharge in October 1985.[2] As such, he engaged in eligible service as a member of the Defence Forces for the duration of his service.
[2] Ibid, [4] and [6].
Following his discharge from the Army, Mr Morris worked largely in the capacity of a hardware salesman/storeman until he ceased work on 31 July 2015.[3]
[3] Ibid, [27]-[42] and Exhibit 7, Mr Morris’ Statement of Facts and Contentions dated 31 July 2017, [11].
The Repatriation Commission (“Commission”) has accepted the following conditions as related to Mr Morris’ service under the Veterans’ Entitlements Act 1986 (Cth) (“Act”):
(a)Ingrown toenails of the left and right feet;
(b)Sensorineural hearing loss;
(c)Tinnitus;
(d)Post-traumatic Stress Disorder (“PTSD”);
(e)Non-melanotic malignant neoplasm of the skin; and
(f)Solar keratosis.[4]
[4] Exhibit 3, Commission’s Statement of Facts, Issues and Contentions dated 23 August 2017, [4].
The following conditions have not been accepted by the Commission as related to

Mr Morris’ service:
(a)Lumbar spondylosis; and
(b)Alcohol dependence.[5]
[5] Ibid, [5].
On 9 July 2015, Mr Morris lodged an Application for an Increase in Disability Pension.[6]
[6] Exhibit 1, T Documents, T 109, pages 269-279.
In support of that application, Mr Morris also lodged a statement dated 29 June 2015, which read in part:
I am having to leave work because I am experiencing many different situations in my employment…

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 2165
Decision Date: 14 November 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Morris for an increase in his disability pension to the Special Rate, as provided for under the *Veterans' Entitlements Act 1986* (Cth). The Repatriation Commission opposed the application. The Administrative Appeals Tribunal was required to determine whether Mr Morris was entitled to payment at the Special Rate, specifically considering whether his accepted Post-Traumatic Stress Disorder (PTSD) was the sole cause of his inability to work, or if other non-war-caused factors had contributed to this incapacity.

The primary legal issue before the Tribunal was the interpretation and application of the "alone test" under section 24(1)(c) of the Act. This test requires that a veteran's incapacity to undertake remunerative work must be due to their war-caused condition, and that any other factors contributing to that incapacity must not have had a "preventative effect" on the veteran's ability to earn. The Tribunal had to assess whether Mr Morris's accepted PTSD, which was not in dispute as preventing him from working, was the sole cause of his inability to earn, or if his pre-existing back condition, alcohol dependence, and domestic circumstances had contributed to this preventative effect.

The Tribunal considered the evidence relating to Mr Morris's longstanding back condition, noting medical reports indicating mild degenerative changes and disc protrusion. It also considered evidence from his employer at the time, which indicated he performed light and clerical duties and was assisted with heavier items due to his back problems, which began prior to his employment. Mr Morris testified that he had not sought treatment for his back until 2014, enduring the pain and continuing to work. Despite acknowledging the pre-existing nature of his back condition, the Tribunal was satisfied that Mr Morris's incapacity had led to a loss of salary or wages that he would not have suffered but for his war-caused condition. Consequently, the Tribunal found that the second limb of section 24(1)(c) was satisfied.

The Tribunal concluded that Mr Morris met all the criteria for the Special Rate of pension from 1 August 2015, the day after he ceased working. Accordingly, the decision under review was set aside, and Mr Morris was determined to be entitled to payment at the Special Rate from that date.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of that evidence, I am satisfied that Mr Morris’ incapacity has led him to suffer a loss of salary or wages or earnings that he otherwise would not have suffered but for his war-caused condition. As such, I consider that the second limb of s 24(1)(c) is satisfied.CONCLUSION I am reasonably satisfied that Mr Morris meets all the criteria for the Special Rate of pension from 1 August 2015 (being the day immediately following the day on which he ceased work). Accordingly, the Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Morris is entitled to pension at the Special Rate provided for in s 24 of the Act, with effect from 1 August 2015.

Ratio Decidendi

Legal Principle Established

Accordingly, it was said that Mr Morris had failed to satisfy the requirements relevant to his application for an increase of his pension to the Special Rate.CONSIDERATIONThe first limb of s 24(1)(c) As mentioned earlier, it is not controversial that Mr Morris suffers from an accepted PTSD condition which prevented him from undertaking work in any capacity. Where the parties disagree is whether other non war-caused factors have contributed to the preventative effect. That calls for a consideration of the evidence relating to each of those other factors.The back condition It is not in dispute that Mr Morris had a longstanding back condition. His Claim for Disability Pension in June 2011 stated that he suffered from lower back pain, describing the signs and symptoms as “always painful”.[37] An x-ray requested by Dr O’Sullivan at the time recorded that “(m)ild lower lumbar degenerative facet joint disease is present most pronounced at L5/S1 level”.[38] A report following a CT scan in February 2014 concluded:Broadbased disc protrusion at the left paracentral region of L5/S1 with probable impingement of the left S1 descending nerve root…Mild multilevel lumbar vertebral osteophytosis and early facet joint OA (osteoarthritis).[39] [37] Exhibit 3, Mr Morris’ Claim for Disability Pension dated 20 June 2011, page 7.[38] Exhibit 1, T Documents, T 10, page 33, medical report of Dr Giovanni (John) Salanitri dated[39] Exhibit 10, clinical notes of Dr John O’Sullivan, page 8, radiologist’s report of Dr Winston Erng dated In a letter dated 15 August 2013, Mr Ian Rowe, the then proprietor of The Landscaping Yard, noted :(Mr Morris) is employed as a Permanent Storeman carrying out light duties and clerical duties and is at times assisted by other staff in lifting some items sold by us which are to (sic.) heavy for him to lift.He has had Time Off on various occasions, due to his Back Problems which began PRIOR TO HIS EMPLOYMENT BY (The Landscaping Yard).[40][40] Exhibit 1, T Documents, T 74, page 196, letter from The Landscaping Yard Pty Ltd and Hardware dated While acknowledging that he had suffered from a back condition for many years,Mr Morris said that he had not sought treatment for it until 2014. Prior to that, he had put up with it and continued to work, notwithstanding that he had some back pain.[41][41] Transcript of proceedings dated 21 September 2017, page 14, lines 25-42. Mr Morris said that he sought treatment when his back seemed to get worse. He spoke with Dr O’Sullivan, who referred him to a clinic for cortisone injections. After the first injection, Mr Morris felt noticeable relief. However, as time went by, he started to stiffen up. He saw Dr O’Sullivan again, who referred him for another injection. That injection was in a different site, and made no difference. For the third injection, in November 2014, Mr Morris was injected in the original site. Since that day, he has not had a problem. He kept working until his resignation in July 2015.[42][42] Ibid, page 14, lines 32-35 and page 15, lines 1-15.