Newcomb and Repatriation Commission (Veterans' entitlements) - [2020] AATA 124

Newcomb and Repatriation Commission (Veterans' entitlements) [2020] AATA 124 (5 February 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/1522
Re:John Newcomb
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:5 February 2020
Place:Brisbane

The decision under review is affirmed.
..........................[Sgd]............................................
Senior Member P J Clauson AM
CATCHWORDS
VETERANS’ AFFAIRS – military compensation – Veterans’ Entitlement Act 1986 (Cth) – disability pension – Special Rate – war-caused injury or war-caused disease – claim for cervical spondylosis condition and shoulder condition – alone test - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Banovich v Respondent (1986) 6 AAR 113
Hendy v Repatriation Commission (2002) 76 ALD 47
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Smith (1987) FCA 327
Repatriation Commission v Watkins [2015] FCAFC 10
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Senior Member P J Clauson AM
5 February 2020
INTRODUCTION

Mr John Newcomb, the Applicant, seeks a review of the Veterans’ Review Board (“VRB”) dated 20 February 2017 which refused the grant of the Special Rate of disability pension.[1] The Applicant performed service with the Royal Australian Navy (“Navy”) from 3 March 1968 to 3 March 1988 and then again from 14 November 2011 to 7 December 2013, at which time he was medically discharged.[2] In the interim, he served as a reservist in the Navy. At the date of the Hearing, the Applicant was 68 years old.
[1] Exhibit 1, T-Documents, T103, pages 592-600, Reviewable Decision of the VRB.
[2] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record.
The Respondent has accepted the following conditions as being related to service:[3]
[3] Exhibit 1, T-Documents, T94, pages 489-506, Section 137 Report; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
·Lumbar spondylosis with intervertebral disc lesions;
·Plantar warts;
·Hyperkeratosis and basal cell carcinomas;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Malignant neoplasm of the prostate;
·Osteoarthritis affecting both knees;
·Post-traumatic stress disorder; and
·Depressive disorder.
The Respondent has not accepted the following conditions as being related to service:[4]
·Carcinoma of the bladder;
·Cervical spine spondylosis;
·Gastro-oesophageal reflux disease; and
·Plantar fasciitis of the right foot.
[4] Exhibit 1, T-Documents, T94, pages 489-506, Section 137 Report; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
THE CLAIM
On 5 November 2013, the Applicant lodged a Claim for Disability Pension and Applicant for Increase in Disability Pension that was received by the Department of Veterans’ Affairs (“DVA”) on 13 November 2013.[5]
[5] Exhibit 1, T-Documents, T55, pages 308-325, Claim for Disability Pension and an Application for Increase in Disability Pension.
On 15 May 2014, a Delegate of the Respondent decided that the Applicant’s disability pension was to be increased to 100% of the General Rate with effect from 13 August 2013.[6] The Delegate accepted the conditions of sensorineural hearing loss of the right…

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: [2020] AATA 124
Decision Date: 5 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision of the Repatriation Commission regarding his claim for an increased disability pension under the *Veterans’ Entitlements Act 1986* (Cth). The Applicant sought to have his pension elevated to the Special Rate, which requires demonstrating that a war-caused injury or disease alone prevents him from engaging in remunerative work. The Applicant had been found entitled to a disability pension at 100% of the General Rate, exceeding the 70% threshold.

The central legal issue before the Tribunal was whether the Applicant's war-caused incapacity, considered alone, prevented him from engaging in remunerative work. This involved assessing the Applicant's claims regarding his inability to work due to his accepted conditions, and whether any non-accepted or co-existing medical conditions contributed to this incapacity, thereby failing the "alone test" under section 24(1)(c) of the Act. The Applicant argued that his non-accepted conditions did not contribute to his inability to work and that the Respondent had not provided sufficient evidence to the contrary.

The Tribunal considered the Applicant's service history, including his initial discharge from the Navy in 1988, his subsequent civilian employment as a financial planner, and his re-enlistment in 2011 until his medical discharge in 2013. The Applicant stated he was medically discharged due to prostate cancer and PTSD, but disagreed that his neck and back conditions were significant factors at that time. The Tribunal noted that the Applicant had not provided evidence of job applications or a genuine pursuit of remunerative work since his discharge in 2013. Despite the Applicant's assertion of inability to work, the Tribunal found that his own judgment, rather than solely medical advice, underpinned this decision. The medical evidence indicated that co-existing health conditions, both accepted and non-accepted, had a preventative effect on his employability, thus failing to satisfy the "alone test".

The Tribunal affirmed the decision under review, concluding that the Applicant had not adduced sufficient evidence to satisfy the Tribunal that his war-caused incapacity alone prevented him from engaging in remunerative work. The Tribunal was not satisfied that the Applicant had fulfilled his obligations in actively seeking employment, and therefore, the ameliorative provisions of section 24(2) of the Act were not enlivened.

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

Further, the Applicant has been found entitled to payment of his disability pension at 100% of the General Rate, which is above the 70% of General Rate threshold.[21][21] Veterans’ Entitlements Act 1986 (Cth) s 24(1)(a); Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 15.THE EVIDENCE A Hearing was convened on 11 May 2018. The Applicant was represented by Mr Anthony Hornby of the Veterans’ Support Centre, and the Respondent was represented by Ms Rachel Blake of Moray & Agnew Lawyers. Both Parties were provided with an opportunity to provide final written submissions. The Applicant The Applicant provided a statement dated 14 December 2017 in the form of an email. This statement outlined the reasons why the Applicant cannot work or function in the workplace:·He wakes up at night and loses a lot of sleep; ·He is continually tired; ·He has a lack of memory and lack of clear thinking; ·He is unable to interact socially; ·He has excess irritability and stress when under pressure;·He has bouts of depression and suicidal thoughts; ·The thought of work frightens him because he knows he will not be able to perform; and·It takes him weeks to build up enough confidence to pay bills and attend to other normal administrative requirements. The Applicant’s statement also outlined why his shoulder and cervical spine do not play a part in preventing him from working:·His neck was cured by physiotherapy before November 2011 and has not been a problem since; and·His shoulder has slowed his swimming down and has occasionally given him pain when it is over used, but is able to be moved through the normal range and still have enough strength for normal activities. The Applicant gave oral evidence at the Hearing. When giving evidence he spoke about how he went into the financial planning field after he was first discharged from the Navy in 1988. He remained with the same financial planning company from 1992 to November 2011. He confirmed that he re-joined the Navy full-time in November 2011, and was discharged in 2013. Under cross-examination, he explained that his reason for re-joining the Navy was partly due to financial reasons. The Applicant gave evidence that he exercises regularly to keep fit, primarily by rowing, which he does competitively, and swimming. The Applicant was asked about his discharge from the Navy in 2013, and he advised that he was medically discharged due to his prostate cancer and PTSD. It was put to the Applicant that the medical documentation for his invalidity retirement referred to a number of conditions relevant to his retirement, including his back and neck conditions which were said to cause ongoing daily pain and discomfort.[22] The Applicant disagreed with this, noting that it was just his back condition that was causing him problems at the time.[22] Exhibit 1, T-Documents, T54, page 305-307, Invalidity Retirement from the Defence Force – Medical Information. The Applicant confirmed that his bladder cancer was no longer problematic after receiving treatment in 2012.

Decision

Reasons for decision

The Applicant then went on to say he felt that he would not be able to service his clients properly. This is, of course, a personal judgement, however, no evidence has been adduced to the Tribunal by the Applicant as to the actual steps he took to apply for jobs and with whom. Given the Applicant was working full-time immediately prior to his discharge, I do not accept that he was unfit for work.CONCLUSION The Applicant initially served for 20 years in the Navy, retiring in 1988, and thereafter serving as a reservist whilst engaged in full-time civilian employment until his re-enlistment in 2011. He then served with the Navy until his medical discharge on 7 December 2013 at 64 years of age. He could be considered to have enjoyed a usual span of working life. In 2013, the Applicant was discharged from the Navy on medical grounds which have been extensively canvassed herein. Prior to his discharge, he had been in full-time employment with the Navy and following his discharge was considered by Dr Chalker, in his Work Ability Report completed on 27 November 2013, to be capable of performing work at that time of between eight to 20 hours per week. The Applicant has not been employed since and nor has any corroborative evidence of his applying for jobs been adduced either before or at the hearing of this matter. His evidence to this Tribunal was in fact, that he decided that he was unable to work and that he would not be able to service his clients properly. Be that as it may, this was a personal decision rather than one at the time based on medical advice and taken without consideration of what he may be able to do. In relation to any incapacity the Applicant suffered, that incapacity referred to in section 24(2)(b) of the Act must be that incapacity induced by a war-caused injury or a war-caused disease. The Tribunal is not satisfied the Applicant’s war-caused incapacity alone caused him to cease remunerative work. The Applicant has been out of the workforce since 2013. He is now 69 years of age and in sound health. He rows competitively, swims, and cycles and is a proficient and adventurous motorcyclist. The medical evidence before this Tribunal supports the conclusion that his co-existing health conditions – both accepted and non-accepted - have a preventative effect on his employability and they preclude him from satisfying the “alone” test at section 24(1)(c) of the Act. The Tribunal had no evidence adduced by the Applicant outlining his job application history, thus it is untested as to whether he would in fact have been employable. There is no evidence before the Tribunal corroborative of the Applicant engaging in an active and genuine pursuit of remunerative work either as a financial planner or some other closely associated or similar role consistent with his vocational skillsets. The Tribunal cannot therefore be reasonably satisfied that he had fulfilled his obligations in this regard so as to enliven the ameliorative provisions of section 24(2) of the Act.

Ratio Decidendi

Legal Principle Established

The Applicant considers that the Respondent has implied that the mere existence of non-accepted medical conditions is sufficient to make the Applicant fail the alone test. He submits that the Respondent has not shown that the non-accepted conditions actually contribute to preventing the Applicant from engaging in remunerative work, and they haven’t provided any recent medical evidence to support this. The Applicant contends that his evidence, along with the written and oral evidence of Dr Steadman, supports a finding that his non-accepted medical conditions did not contribute to preventing him from engaging in employment. CONSIDERATION The Applicant resigned from the Navy on 3 March 1988 following 20 years of continuous service.[80][80] Exhibit 1, T-Documents, T99, pages 573-574, Document entitled “Veteran Community Details Report”. Between 1988 and the Applicant’s re-enlistment in 2011 with the Navy, he served as a reservist; and at the same time had been engaged in employment on his own account and working for others as a financial planner, amongst occupations associated with the finance industry. His personal and financial circumstances intervened and he then, as a result, sought a full-time position with the Navy as a reservist. It is a matter of record that the Applicant, upon re-joining in 2011, served with the Navy until his medical discharge on 1 November 2013.[81][81] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record. The Tribunal accepts that the Applicant served with the Navy from 13 November 1968 to 3 March 1988. The Tribunal also accepts that from 1988 thereafter until his re-enlistment in 2011, the Applicant served as a reservist. The Tribunal accepts that the Applicant continued to serve with the Navy until being medically discharged on 1 November 2013.[82][82] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record. The Tribunal accepts the evidence in the material before it that the Applicant rendered service qualifying him as eligible for the purposes of the Act.[83][83] Exhibit 1, T-Documents, T99, pages 573-574, Document entitled “Veteran Community Details Report”. The issue before the Tribunal is whether the evidence before it is supportive of the Applicant’s claim to have his entitlement to a disability pension increased from 100% of the General Rate to the level of the Special Rate. An Applicant must, in order to be eligible for either the Special Rate or the Intermediate Rate of disability pension, satisfy the Tribunal that the criteria outlined herein have been satisfied. An Applicant must also satisfy the requirements at section 28 of the Act as outlined in this decision. After his first period of service with the Navy, the Applicant worked as a financial planner. He furthered his qualifications into stockbroking and funds management before working as a principal and senior financial planner until 2011.[84][84] Transcript of Proceedings, pages 9-15. The Tribunal notes that the Applicant gave evidence to the Tribunal that he had been through a divorce and property settlement that had left him in debt and he had decided to re-join the Navy to improve his financial situation.[85] He further stated that he was prompted to take this step because he had heard rumours that the franchise he was working for were looking at selling the business and he “didn’t want to move to another dealer”.[86] [85] Transcript of Proceedings, page 16.[86] Transcript of Proceedings, page 16.