O'Leary and Repatriation Commission - [2000] AATA 836

DECISION AND REASONS FOR DECISION [2000] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1141

VETERANS' APPEALS DIVISION )

Re Kevin James O'LEARY
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date18 September 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – whether war-caused PTSD was the reason the Applicant ceased work as a cartoonist – whether depressive disorder can be included under diagnosis of PTSD - low motivation - whether Applicant entitled to pension at the Intermediate Rate – whether Applicant entitled to pension at the Special Rate

Veterans' Entitlements Act 1986 ss 23, 24

REASONS FOR DECISION

18 September 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 20 December 1997 that continued payment of disability pension to Kevin James O'Leary ("the Applicant") at eighty percent of the General Rate. The Veterans' Review Board affirmed that decision on 24 June 1998. The Applicant lodged an application for review by this Tribunal on 19 August 1998
The Applicant is seeking payment of pension at the Special (Totally and Permanently Incapacitated) Rate, pursuant to s24 of the Veterans' Entitlements Act 1986 ("the Act"). He lodged an application for increase in disability pension on 5 December 1997.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of the Applicant –

Statement of the Applicant dated 19 September 1999 (exhibit A);
Reports of Dr G Altman, psychiatrist, dated 12 January 1999 and 22 January 1999 (exhibit B);
Report of Dr M Baz, occupational health physician, dated 26 February 1999 (exhibit C);
Statement of Jim Russell, Managing Director, General Features Pty Ltd. dated 16 September 1999 (exhibit D);
Clinical notes of Dr G Altman (exhibit E);
Loss of earnings statement of the Applicant (exhibit F).

The following documents were tendered on behalf of the Respondent –

Report of Dr R Lewin, psychiatrist, dated 24 January 1999 (exhibit 1);
Report of Professor A Breslin, thoracic physician, dated 8 March 1999 (exhibit 2);
Report of Dr M Burns, occupational physician, dated 17 March 1999 (exhibit 3);
Applicant's income tax returns for the financial years 1994/5, 1995/6, 1996/7, 1997/8, 1998/9 (exhibit 4).

The Applicant gave oral evidence at the hearing. Dr Baz and Dr Altman gave oral evidence, called by the Applicant. Dr Lewin and Dr Burns were called by the Respondent to give oral evidence.
The Applicant's war-caused disabilities are bilateral sensorineural hearing loss with tinnitus, and post traumatic stress disorder ("PTSD") and alcohol abuse. Asthma has been rejected as a war caused condition.
the relevant legislation
Intermediate rate of pension
23. (1) This section applies to a veteran if:
(aa)…
(aab) the veteran had not yet turned 65 when the claim…

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.

Keep reading for free

Create a free CaseChat account to read O'Leary and Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] AATA 836
Decision Date: 18 September 2000

CaseChat Overview and Summary

The case of O'Leary and Repatriation Commission involved the Applicant seeking to have his pension increased based on the extent of his incapacity due to war-caused post-traumatic stress disorder (PTSD). The Applicant argued that his PTSD, which included depressive disorder, had rendered him unable to work as a cartoonist, which was his remunerative occupation at the relevant time. The Repatriation Commission questioned the extent of the Applicant's incapacity and whether it justified a higher pension rate. The Commission was tasked with determining whether the Applicant's PTSD, including depressive disorder, was the reason he ceased work as a cartoonist, and if his low motivation to finish his work was due to his psychological condition. Furthermore, the Commission had to decide if the Applicant was entitled to a pension at the Intermediate or Special Rate under the Veterans' Entitlements Act 1986.

The legal issues before the court centred on the interpretation of the Veterans' Entitlements Act 1986, specifically sections 23 and 24, which govern the assessment of veterans' pension entitlements based on the degree of incapacity due to war-caused conditions. The key issues were whether the Applicant's war-caused PTSD was the reason he ceased work, if depressive disorder could be included under the diagnosis of PTSD, and the extent of the Applicant's incapacity in terms of low motivation and other symptoms. The court also had to consider whether the Applicant's condition justified a pension at the Intermediate or Special Rate, which reflects a higher degree of incapacity.

The court found that the Applicant's war-caused PTSD, including depressive disorder, was the reason he ceased work as a cartoonist. The court accepted that the Applicant's low motivation, irritability, and concentration difficulties were symptoms of his psychological condition. The court also considered Dr. Burns' evidence, which suggested that the Applicant was working "relatively efficiently" despite his condition, but noted the importance of assessing the significance of the amount of work he was undertaking. The court determined that the Applicant's condition justified a pension at the Intermediate Rate, reflecting a significant but not total incapacity for work.

The final orders of the court were that the Applicant was entitled to a pension at the Intermediate Rate, reflecting the extent of his incapacity due to war-caused PTSD, including depressive disorder. The court found that the Applicant's condition was the reason he ceased work as a cartoonist and that his low motivation and other symptoms were a result of his psychological condition. The court rejected the argument that the Applicant could have continued to work in another capacity, finding that his condition rendered him incapable of doing so.

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

Dr Burns said that he came to the conclusion that the Applicant had ceased employment when he stopped advertising in the Yellow Pages and no longer continued looking for work. The Tribunal alerted Dr Burns to the Applicant's evidence about his earnings in 1997, 1998 and 1999. Dr Burns concluded that if the Applicant was spending only a few hours a week completing this work then he considered that the Applicant was working "relatively efficiently". From the Applicant's evidence it was not clear how long it took him to complete the work for which he received payment and Dr Burns considered this was a crucial component in assessing the significance of the amount of work the Applicant was in fact continuing to undertake. In respect of the Applicant's lack of motivation to finish his work, Dr Burns considered that this "can be due to a whole series of different issues" and in the Applicant's case he has two "potentially good reasons for lack of motivation", those being his psychological condition and sleep apnoea. consideration of evidence, submissions and findings of fact The Respondent tendered the Applicant's Taxation Returns from 1994 to 1999 (exhibit 4) some months after the oral evidence was taken. The Tribunal then received written submissions on behalf of the Applicant on 24 May 2000, and on behalf of the Respondent on 21 July 2000. It was submitted for the Applicant that he has demonstrated attempts to work as a cartoonist after leaving the Defence Housing Authority, but his accepted disabilities have made work impossible. The main reason he cannot work is that he lacked motivation and drive, he was irritable and cranky, and lacked concentration. On the evidence of Dr Baz the Applicant's depression, lack of motivation, and irritability dated from the time he had difficulty coping with his job at the Defence Housing Authority. Dr Baz considered that while the Applicant had the ability to work self-employed as a cartoonist, illustrator and caricaturist, he was significantly limited by his PTSD, and in particular his quite marked depression, in undertaking that work. It was submitted for the Respondent that the Applicant ceased work with the Defence Housing Authority in circumstances where, if he was so minded he could have continued work in another capacity. Further, his work as a cartoonist, which is said to represent his capacity to undertake remunerative work, has never been more than a part-time undertaking. On the basis of Dr Burns' evidence that the usual price of a cartoon is $400 to $500, it was submitted that the Applicant has not produced cartoons and similar works in any great volume since 1985. The Tribunal notes the Applicant's evidence that in respect of his work as a cartoonist when he took the redundancy, he had set himself a target "that I could put a lot into 20 hours". While this infers a goal of part-time work, that of itself is not an obstacle to his work as a cartoonist being accepted as his remunerative work. It is clear from his income tax returns that he was earning an income from a cartoonist business. The Tribunal finds on the evidence that work as a cartoonist, humorous illustrator and caricaturist is the remunerative work that the Applicant was undertaking at the relevant time, and the fact that he took a redundancy from the Defence Housing Authority in 1992 is not relevant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.