New and Repatriation Commission (Veterans' entitlements) - [2023] AATA 1665

New and Repatriation Commission (Veterans' entitlements) [2023] AATA 1665 (16 June 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/6814
Re:Terence New
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:16 June 2023
Place:Sydney

The Reviewable Decision is affirmed.
..................................[SGD]......................................
Senior Member Dr Linda Kirk
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability pension – application for special rate of pension – veteran served in multiple operations – accepted service-caused conditions of thoracic spondylosis, cervical spondylosis, tinnitus, sensorineural hearing loss, osteoarthritis of the left and right knees, adjustment disorder, lumbar spondylosis – depressive disorder and post-traumatic stress disorder not accepted conditions – whether applicant is 'totally and permanently incapacitated' – whether applicant is incapacitated for service caused conditions 'alone' – whether ameliorating provision in s 24(2)(b) applies – whether applicant has been genuinely seeking remunerative work – where applicant has accepted conditions under other schemes – decision affirmed.
LEGISLATION
Military Superannuation and Benefits Act 1991 (Cth)
Military, Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573
Smith v Repatriation Commission [2014] FCAFC 53; (2014) FCR 452
Starcevich v Repatriation Commission [1987] FCA 342; (1987) 18 FCR 221
Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions (No. 2) 2016 (Cth)
REASONS FOR DECISION
Senior Member Dr Linda Kirk
16 June 2023
BACKGROUND

Terence New (‘the Applicant’) was born in September 1962.[1] He enlisted in the Royal Australian Airforce (‘RAAF’) on 22 January 1985. He was employed as a Logistics Officer, attaining the rank of Squadron Leader. He was discharged on 31 January 2016.
[1] T-Docs T3, 14.
The Applicant rendered ‘operational service’ for the purposes of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’) as follows:
- 25 February 2000 to 30 June 2000 – Operation Tanager (East Timor);[2]
- 3 September 2001 to 16 November 2001 – Operation Reflex (Border protection post-Tampa affair);
- 10 September 2008 to 11 October 2008 – Operation Catalyst (Iraq);[3]
- 20 April 2010 to 2 November 2010 – Operation Slipper (Afghanistan).[4]
On 14 August 2015, the Applicant submitted to the Repatriation Commission (‘the Respondent’) a claim under the Act for ‘post-traumatic stress disorder’ and ‘depression’.[5]
[5] Ibid T7, 37,…

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: [2023] AATA 1665
Decision Date: 16 June 2023

CaseChat Overview and Summary

This case concerned an application for a special rate of disability pension under the *Veterans' Entitlements Act 1986* (Cth). The applicant, Mr New, sought to be assessed as totally and permanently incapacitated (TPI) due to a range of accepted service-caused conditions, including various spinal and knee conditions, tinnitus, hearing loss, and adjustment disorder. The dispute centred on whether Mr New was incapacitated for work by these conditions alone, and whether an ameliorating provision applied. The Administrative Appeals Tribunal (AAT) affirmed the delegate's decision to refuse the special rate pension.

The AAT was required to determine two primary issues. First, whether the applicant was incapacitated from working more than eight hours per week by virtue of his service-caused conditions. Second, if he was so incapacitated, whether these conditions alone were the sole factors preventing him from undertaking work, leading to a loss of salary or wages that he would not have suffered but for that incapacity. The applicant also had accepted conditions under other legislative schemes, which were relevant to the overall assessment of his health.

In its reasoning, the AAT considered the applicant's engagement with Disability Employment Services and a subsequent Job Plan. The applicant had registered with these services, which specialise in placing individuals with disabilities into employment. However, the applicant stated that he had not actively sought employment or submitted job applications because his provider had not identified any suitable positions for him. The AAT noted that the applicant had also been involved in volunteer work and social activities, which he described as low stress. The Tribunal ultimately found that the applicant had not demonstrated that he was genuinely seeking remunerative work, nor that his accepted service-caused conditions alone were the sole reason for his inability to work.

The AAT affirmed the delegate's decision. The Tribunal concluded that the applicant had not satisfied the criteria for a special rate pension, specifically regarding his incapacity for work and the sole causative effect of his service-related conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

When he returned to Australia, the Applicant was posted into the ADF warfare centre in Williamstown, but his wife remained in Canberra. This centre is the major joint training unit for the ADF. All junior and intermediate level officers go to the centre to get trained to learn how to plan operations.[27] The Applicant’s role at the centre was as an instructor / trainer.[28] He was in the training unit for a few years, but eventually moved out because he was not able to support its military objectives.[29][27] Ibid, 23.[28] Ibid.[29] Ibid.Background to discharge from RAAF The Applicant told the Tribunal that had a ‘bit of a bad time coming back’ from Afghanistan and he thinks he had a ‘nervous breakdown’ in February 2012.[30] He was putting himself under too much stress trying to get the job done and not taking care of himself.[31] This was ‘the first significant event that was brought to the attention of [his] health people.’[32] [30] Ibid, 22.[31] Ibid, 23.[32] Ibid, 28. The Applicant’s wife eventually returned to Williamstown with their children, and they remained there for a couple of years. His wife then started being posted for work and he remained at home as the primary carer of their children. This affected their marriage, and they started getting counselling for the children as ‘things weren’t looking good’ for their relationship.[33][33] Ibid, 22. In September 2014, the Applicant was nominated by RAAF headquarters as the only RAAF representative to do the Kokoda track trip.[34] They thought that it might ‘give [him] a restart’. He was trying to get his ‘career back on track’ and he ‘had made some significant leaps.’[35] He had done well at losing weight and getting his fitness back. However, he now realises that ‘a lot of what [he] was doing was just putting band-aids over all the problems that [he] was having with [his] head and with [his] body.’[36] [34] Ibid, 28, 29.[35] Ibid, 28-29.[36] Ibid, 29. The Applicant told the Tribunal that at the end of the Kokoda trip he ‘was absolutely physically exhausted’, and when he returned home his health ‘just declined dramatically’.[37] Dr Michael O’Donoghue made a decision to send him home to convalesce as he was not coping.[38] The Applicant commenced the claims process through the Department of Veterans Affairs (‘DVA’), and the conclusion was reached that because of all his injuries and his mental health problems he was ‘unsuitable for further service.’[39]The Applicant was discharged from the RAAF in January 2016. He told the Tribunal, ‘they put me out to pasture because I was too broken.’[40] He explained that ‘all the problems with my head’ were ‘putting too much stress on me’ as did the responsibilities he had as a logistics officer.[41]Invalidity Retirement Form[37] Ibid.[38] Ibid.[39] Ibid.[40] Ibid, 22.[41] Ibid, 23. In an Invalidity Retirement from the Defence Force – Medical Information Form dated 28 August 2015 (‘Invalidity Retirement Form’), Dr O’Donoghue listed the following conditions as having led to the Applicant’s retirement:[42]• Depression and anxiety• Obesity and hyperlipidaemia• Right arm injury• Cervical spine degeneration• Lumbar spine degeneration.[42] T-Docs, T43, 205.

Evidence

Evidence Before The Court

The issues for determination are:1)Is the Applicant incapacitated from working more than eight hours per week from the commencement of the assessment period by virtue of his service-caused conditions relevant to s 24(1)(b) of the Act?2)If yes, are the Applicant's service-caused conditions alone the only factors preventing him from continuing to undertake work from the commencement of the assessment period resulting in his suffering a loss of salary or wages that he would not have but for that incapacity such as to satisfy the requirements of s 24(1)(c) of the Act?EVIDENCE BEFORE THE TRIBUNALAccepted conditions The Applicant has the following accepted service-caused conditions under the Act:[18]·Thoracic spondylosis·Cervical spondylosis·Tinnitus·Sensorineural hearing loss·Osteoarthritis of the left knee·Osteoarthritis of the right knee·Adjustment disorder·Lumbar spondylosis[18] RSFIC, [18]. The following conditions have not been accepted under the Act:·Post-traumatic Stress Disorder·Depressive Disorder. The Applicant has the following accepted conditions under the Safety, Rehabilitation and Compensation Act 1988 (Cth):·Right knee osteoarthritis·Right knee bucket handle tear of the medial meniscus (resolved), leading to chondromalacia patella and resulting in osteoarthritis·Left knee osteoarthritis·Left knee degenerative medial meniscal tear·Thoracic spondylosis·Lumbar spondylosis·Cervical spondylosis·Tinnitus The Applicant has the following accepted conditions under the MRCA:·Adjustment disorder with anxious mood·Major depressive disorder.Employment prior to ADF service The Applicant completed his Year 12 Certificate in 1980 and obtained a degree from the NSW Department of Industry as a timmer tradesman. Prior to his Australian Defence Force (‘ADF’) service he worked in the following employment:·Trainee Sail maker at Hood Sails from 1980 to 1981·Labourer at Duggan Constructions in 1981·Marine Maintainer at McKay Marine in 1981·Machinist Trainee at Petrol Tap & Gas Cock Manufacturing Company in 1981·Fibreglasser at Cobra Cats International from 1981 to 1982RAAF service When he joined the RAAF, the Applicant completed his trade training in safety equipment at Richmond, and then worked as an Aircraft support fitter for the first 11 years of his service.[19] [19] Transcript, 21. The Applicant’s first posting was to Williamstown to work on the mirages. He then ‘did the rounds’ of some of the training bases. He went to Sale for a couple of years and during this posting he met his wife. They were posted to RAAF Pearce in Perth where they stayed for a couple of years. They then returned to Sydney and the Applicant worked at Richmond.[20] [20] Ibid. The Applicant was sponsored by the ADF to undertake study at the University of Toowoomba with a view to getting a commission as a supply officer. He graduated with a Bachelor of Business in Logistics and Operations Management in 1998.[21] He also completed the following qualifications:·Associate Diploma of Administration Studies – 1997·Certificate in Aircraft Life Support Maintenance – 1996·Diploma of Government (Management) – 2005·Advanced Diploma of Personnel & Operations Management – 2005·Certificate IV in Training and Assessment – 2012[21] Ibid, 24.

Decision

Reasons for decision

The Applicant told the Tribunal that Dr O’Donoghue had only occasionally treated him before this point in time, but he took care of him at the end because he ‘was a complex case’. Dr O’Donoghue was the Chief Officer of the unit and he ‘thought it was important to process [the Applicant] out of the Air Force and do it properly.’[44][44] Transcript, 29-30.Invalidity Benefits decision In a decision dated 1 September 2016 under Rule 22 of the Military Superannuation and Benefits Act 1991 (Cth), (‘Invalidity Benefits decision’),[45] a delegate of the Commonwealth Superannuation Corporation reported the Applicant’s retirement impairments:[46]·Depression·Post-traumatic stress disorder·Obesity·Hyperlipidaemia·Cervical, thoracic and lumbar spine spondylosis·Internal derangement right knee·Chondromalacia patella of the right knee·Degenerative medical meniscal tear left knee[45] T-Docs T19, 119-127.[46] Ibid T19, 119. The delegate made the following findings:a)the relevant kinds of civil employment which a person with Mr New's vocational, trade and professional skills, qualifications and experience might reasonably undertake are Labourer, Security Officer and Guard, Clerical and Administrative Worker, Vocational Education Teacher and Specialist Manager;b)Mr New's retiring impairments are depression, post traumatic stress disorder, obesity, hyperlipidaemia, spondylosis of the cervical, thoracic and lumbar spine, internal derangement and chondromalacia patella of the right knee and degenerative medical meniscal tear of the left knee; andc)The retiring impairment diminished his capacity to undertake the kinds of civil employment listed in (a) by an overall large degree and that he be classified 80% Class A with effect from 1 February 2016, being the day after his discharge date.[47][47] T-Docs, T19, 126.Activities following retirement The Applicant told the Tribunal that he has ‘been asked by various people to do a short summary of [his] qualifications’ but he has ‘never sat down and done a full CV.’[48] He said that following their discharge, the ADF will pay for former members to get assistance to prepare a resumé. However, because he was told by his medical specialist that he was unsuitable for work, he never got around to obtaining this assistance.[49][48] Transcript, 25.[49] Ibid. In his statement dated 30 March 2021 the Applicant wrote:[50]Because I have been reasonably busy with my volunteer work and veteran social activities, I have been quite reluctant to look for any real employment.[50] Covid Bundle, A8, 26, [9]. During cross-examination, the Applicant told the Tribunal that he was the club president at the Wanderers Rugby club while he was in the service. He had previously been a rugby player and they asked him to get involved in coaching the kids. He did this for his son’s team for three years.[51] When his daughter started playing basketball he got involved in this too. He said that none of this was ‘physically demanding’ and it was a ‘low stress, high fun thing.’[52][51] Transcript, 31.[52] Ibid.

Ratio Decidendi

Legal Principle Established

During cross-examination, the Applicant was asked whether it is the productive side of work that creates stress for him and therefore he feels the need to avoid it. He stated:I haven’t necessarily avoided it, I’ve just been told that I am not ready for rehabilitation. Now, if you go back as far as the assessment that was done by Professor Ghabrial, he did a full assessment of my musculoskeletal issues, and he made it quite clear that I was unsuitable to go back into any sort of work. He – I think I can safely quote off the top of my head, he said something like sedentary lifestyle.[93][93] Transcript, 36.Disability Employment Services registration The Applicant signed a registration form for Disability Employment Services on 15 March 2021.[94] In answer to Question 4, “Do you have a disability, injury, or health condition which may impact on your ability to work?” the Applicant wrote, “Spinal, knees, mental health, PTSD, anxiety, depression”.[94] Covid Bundle A7, 16. In his statement dated 30 March 2021, the Applicant wrote:[95]But on advice of my advocate, I have looked into possible part time employment through a career’s agency called Job Centre Australia. They specialise in trying to place people with disabilities in work.[95] Ibid, A8, 26, [9]. A Job Plan for the Applicant for the period 5 August 2022 to 1 November 2022 states:I agree to research potential employers and prepare job applications with the help of Omnia Inclusive Employment Solutions from 05/08/2022to 01/11/2022.…I agree to undertake activities to look for work for 15 hours or more per week at or above the relevant minimum wage from 05/08/2022 to 01/11/2022.…I understand that I can have my job plan reviewed at any time to reflect any changes in my circumstances and ways my provider will help me.[96][96] Covid Bundle A7, 20-22. The Applicant was asked whether he made any applications for jobs during this period. He told the Tribunal:With the disability employment service, they’re a very hands-on group unlike some other employment services. I mean, I’ve never used regular ones anyway. I’ve been in the Air Force for 30 odd years. So, I can’t say, but, I mean, I talk to my case officer down there all the time, at least once a week, once a fortnight, sometimes, anyway, and she lets me know that they haven’t found any suitable employment, and, you know, I’ve just – okay. Right. Well, they actively look for their people because of the disability. It’s a – that’s how they work.[97] [97] Transcript, 52. He told the Tribunal that he has not put together a CV or submitted any job applications as part of this Job Plan because ‘they’ve not found any employment for me to apply.’[98][98] Ibid. The Applicant was asked to confirm whether 15 hours per week is the number of hours identified by Disability Employment Services as being appropriate for his circumstances. He stated:That’s just a … marker that they put in there. I asked that question of them, and they said, no, that’s fine. That’s – yes, so, I didn’t – all I am trying to do is test the water and see if there is any employment out there for me. That was the whole idea. And thus far they have not found any employment for me.[99][99] Ibid.