O'Donnell and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2355

O'Donnell and Repatriation Commission (Veterans' entitlements) [2021] AATA 2355 (9 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/1186
Re:Michael O'Donnell
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Rayment OAM QC
Date:9 July 2021
Place:Sydney

The reviewable decision is set aside and substituted with a decision that the applicant is entitled to a pension in accordance with s 24 of the Veterans’ Entitlements Act 1986 (Cth).
.......................[sgd].................................................
Deputy President Rayment OAM QC
CATCHWORDS
VETERAN’S AFFAIRS – disability pension – whether applicant entitled to special rate – Veterans’ Entitlements Act 1986 (Cth) - relevant date of consideration of claim – which remunerative work was relied upon by the applicant – meaning of remunerative work – whether eligibility depends upon substantial or trivial losses – assessment period – whether applicant incapable of remunerative work by reason of war-caused incapacity alone - whether other factors contributed to cessation of work - matters to be considered – decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Chambers v Repatriation Commission (1995) 55 FCR 9
Delkou v Repatriation Commission (1986) 69 ALR 406
Gauntlett v Repatriation Commission (1991) 32 FCR 73
Lucas V Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Sheehy (1995) 39 ALD 286
Repatriation Commission v Smith (1987) 74 ALR 537
Starcevich v Repatriation Commission (1987) 18 FCR 22
REASONS FOR DECISION
Deputy President Rayment OAM QC
9 July 2021

This proceeding relates to a review of the refusal by the respondent (affirmed by the Veterans’ Review Board (VRB)) to accede to a claim for a special rate of pension by the applicant under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). That special rate was known as the TPI pension and is now often referred to as an earnings-related pension.
Section 24(1) and (2) of the Act provide as follows:
Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for…

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: [2021] AATA 2355
Decision Date: 9 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr O’Donnell against a decision of the Repatriation Commission regarding his entitlement to a special rate disability pension under the *Veterans’ Entitlements Act 1986* (Cth). The dispute centred on whether Mr O’Donnell was incapable of undertaking remunerative work by reason of his war-caused incapacity alone, and the relevant date for considering his claim. The appeal was heard by Deputy Rayment Oam Qc P.

The primary legal issues before the court were to determine the meaning of "remunerative work" in the context of the Act, whether Mr O’Donnell's eligibility for the special rate pension depended on substantial or trivial losses of earning capacity, and crucially, whether his incapacity to work was solely attributable to his war-caused condition or if other factors contributed to his cessation of work. The court also had to consider the appropriate assessment period for determining his entitlement.

Deputy Rayment Oam Qc P reasoned that Mr O’Donnell's evidence, supported by contemporaneous records and medical reports, indicated he worked no more than approximately five to eight hours per week on mystery shopping activities during the relevant period. Medical evidence from his general practitioner and neurosurgeon confirmed significant back pain and a substantial loss of spinal movement, with one report stating he was "certainly unable to work." The court accepted that but for his back pain, Mr O’Donnell would have continued this work, which he undertook to remain occupied and supplement his pension. The court concluded that his incapacity to perform remunerative work was solely due to his war-caused incapacity. Consequently, the decision of the Repatriation Commission was set aside and substituted with a finding that Mr O’Donnell was entitled to the special rate of pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr O’Donnell’s evidence that over the assessment period he did not in fact work more than about five hours per week, even allowing for travelling time, seemed to me to be supportable on evidence other than his own. The estimate had the support of his more contemporaneous record given to the VRB in writing in 2018. His estimate of the travelling time was not inherently improbable. Because he was generally limiting himself to local jobs, even if his estimate was wrong, his time spent on the mystery shopping is unlikely to have reached an aggregate of eight hours per week.The medical evidence The applicant’s general practitioner wrote in a medical impairment assessment dated 30 May 2016 that the applicant experienced back symptoms when standing or sitting, suffered from sciatica on both sides and about a 75% loss of range of thoracolumbar spinal movement. Dr Coughlan, neurosurgeon, first reported in 2015 on the applicant whom he had been treating then for one year. He noted that it was likely that the applicant’s lumbar spine condition would have a permanent negative effect on his ability to ‘enjoy life, achieve gainful employment or maintain full independence’. In October 2017, Dr Coughlan said that he agreed with the applicant’s general practitioner that working was not the right thing for the applicant as his condition was becoming worse. In a 2019 report, Dr Coughlan stated that he would agree that he is unable to perform heavy tasks and some moderate tasks ‘and is certainly unable to work’, which I do not assume comprehends to part-time work involved in mystery shopping, which was continuing throughout most of the assessment period, although scaling down, in more recent years, including during the assessment period. It appears from Mr O’Donnell’s extracts of his tax return that such work as he was doing as a mystery shopper was tailing off. In FY 2016-2017 he earned about $2,283 from that endeavour. In FY 2018-2019 he earned $1,247 from mystery shopping. He says that he ceased the endeavour altogether in January 2020. That may well be so, although I am not comfortable in making a finding to that effect for the reasons expressed above. Dr Coughlan did not give oral evidence. His reports reveal a consistent history of back pain, which I also saw exhibited during the hearing when the applicant gave evidence. I have accepted that the applicant did not in fact work in the mystery shopping activity more than eight hours per week in the aggregate. It seems to me that I should also accept on the probabilities that but for his back pain, he would have continued to do his mystery shopping work, for the same reasons as I assume affected his decision to undertake mystery shopping work in the period before the assessment period. He originally undertook that work to keep himself occupied and earn a supplement to his superannuation pension. He says that he gradually reduced his working hours because his worsening back pain obliged him to do so. That appears to accord with the probabilities.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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