Oldmeadow and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1813

Oldmeadow and Repatriation Commission (Veterans' entitlements) [2017] AATA 1813 (20 October 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/4504
Re:John Oldmeadow
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:20 October 2017
Place:Sydney

The Tribunal sets aside the decision under review, and in place of that decision determines that the Applicant is entitled to pension at the Intermediate Rate provided for in s 23 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 15 July 2013.
..................................[sgd]...................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS AFFAIRS — disability pension — application for increase in pension – intermediate rate of pension – whether veteran’s defence-caused incapacity renders the Applicant incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review set aside and substituted.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5Q(1), 23(1)(b), 24(1)(b), 24(1)(c), 28(a), 28(b), 28(c)
CASES
Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219
Counsel v Repatriation Commission [2002] FCAFC 201; (2002) 122 FCR 476; 72 ALD 204
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328
Re Cavell and Repatriation Commission (1986) 10 ALN N233
Re Fahey and Repatriation Commission (1986) 10 ALD 338
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commissionv Richmond [2014] FCAFC 124
Smith v Repatriation Commission [2014] FCAFC 53
REASONS FOR DECISION
Ms N Isenberg, Senior Member
20 October 2017
Background

The Applicant, John Oldmeadow, served in the Royal Australian Air Force (‘RAAF’) from 1971 to 1983. He had a number of conditions accepted as service-caused: Post-Traumatic Stress Disorder (‘PTSD’), Tinnitus, Sensorineural Hearing Loss and Lumbar Spondylosis. 20 October 2017On 15 July 2013, he applied for an increase in the rate of his disability pension, in particular, he sought the Special Rate of pension, on the basis that, as a result of his service-caused disabilities alone, he had a degree of incapacity of at least 70%, and was unable to work more than 8 hours a week. He was said to be suffering a loss of earnings due to having to hire staff to do work for his motel business that he had previously undertaken himself but could no longer perform due to the worsening of his accepted disabilities alone.
His application for the Special Rate was refused and his pension was continued at 100% of the General Rate (‘the decision’). That decision was affirmed on review by the Veterans’ Review Board (‘VRB’) on 2 July 2015. On 28 August 2015, the Applicant applied to the Tribunal for review of the decision.
At the hearing, the Applicant made an alternative submission, namely that, should his application for the Special Rate, fail, he was eligible to…

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 1813
Decision Date: 20 October 2017

CaseChat Overview and Summary

This matter concerned an application by the Applicant to the Tribunal for a review of a decision by the Repatriation Commission to refuse an increase in his disability pension. The Applicant sought payment at the Special Rate, or alternatively, the Intermediate Rate, of pension under the *Veterans' Entitlements Act 1986* (Cth). The core of the dispute revolved around whether the Applicant's defence-caused incapacity rendered him unable to undertake remunerative work for more than 8 hours per week (for the Special Rate) or 20 hours per week (for the Intermediate Rate).

The Tribunal was required to determine two primary legal issues. Firstly, whether the Applicant's incapacity from his accepted defence-caused conditions was of such a nature as to render him incapable of undertaking remunerative work for more than 8 hours per week, thereby qualifying him for the Special Rate. Secondly, if he did not qualify for the Special Rate, whether his incapacity rendered him incapable of undertaking remunerative work for 20 or more hours per week, which would entitle him to the Intermediate Rate. These determinations necessitated an examination of the Applicant's trade and professional skills, qualifications, and experience, and the effect of his accepted disabilities on his capacity to perform such work, as well as whether he had been prevented from continuing his previous remunerative work due to his incapacity and suffered a consequent loss of earnings.

The Tribunal applied the principles outlined in sections 24 and 23 of the *Veterans' Entitlements Act 1986*, which establish a composite test for eligibility for the Special and Intermediate Rates. This test requires that the veteran's incapacity, arising solely from service-caused conditions, must be of a nature that, of itself, renders them incapable of undertaking remunerative work for the specified hours. The Tribunal considered the Applicant's history as a hospital clerk in the RAAF and his subsequent employment at the Australian Taxation Office, noting his back injury and later diagnosis of PTSD. It also considered his part-time employment as a cash processor. The Tribunal referenced *Smith v Repatriation Commission* [2014] FCAFC 53 regarding the composite nature of the test and *Chambers v Repatriation Commission* [1995] FCA 1144 concerning the broad interpretation of skills and qualifications.

The Tribunal found that the Applicant did not meet the criteria for the Special Rate. However, it determined that the Applicant's defence-caused incapacity rendered him incapable of undertaking remunerative work for 20 or more hours per week. Accordingly, the Tribunal set aside the previous decision and substituted a new decision that the Applicant was entitled to payment of pension at the Intermediate Rate.

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

An Applicant must also:·have been prevented from continuing to undertake a kind of remunerative work that he was undertaking because of incapacity from accepted disabilities alone; ·and because of this, have suffered a loss of salary, wages or earnings on his own account.[2][2] ss 24(1)(c) and 23(1)(c)Applicant’s evidence The Applicant said that his work in the RAAF was as a hospital clerk, undertaking medical administration, which was a paper-based role. He supervised a team of staff between 4 and 10. He said that he injured his back in 1973 playing football for the RAAF and, from that time, suffered mild to severe sciatica and lumbosacral back pain. Over many years, during and after, his service he consulted general practitioners and was prescribed anti-inflammatory medications and, at times, opiates for severe outbreaks of sciatica. He would avoid situations involving bending, stretching, lifting, sitting or standing for long periods. In August 2008, he was diagnosed with PTSD occasioned by having participated in the recovery of three deceased airmen killed in a helicopter crash near RAAF Base Williamtown in August 1981. He had experienced symptoms of PTSD, he said, since approximately 1982 including depression, social withdrawal, experiencing difficulty displaying affection to his wife and three children, alcohol abuse, agoraphobia, OCD amongst other things but had not attributed those symptoms to the event. It had had a profound effect on his personal life. He is on a maintenance dose of antidepressants to alleviate his symptoms of PTSD and expects to continue with these on a permanent basis. On leaving the RAAF, he joined the Australian Taxation Office (‘ATO’). His work was at first in the field cross checking business records against the ATO’s records to confirm appropriate GST payments had been made. Laptops were used from the late 1990s. When he was moved to an inside job, he was allocated special ergonomic furniture following a workplace assessment. He left the ATO in September 2008 after almost 22 years. The reason he left, he said, was because he could no longer handle the stress of a full time job as it was exacerbating his PTSD symptoms and he was unwilling to disclose his diagnosis of PTSD. His preference would have been to work part-time or in less stressful work area but it was unlikely to be available. In December 2008, he obtained a part time sedentary job with Linfox Armaguard for up to 15-20 hours per week as a cash processor counting money, mainly notes. He did not disclose his medical conditions because he believed he would not have secured the job. Within a few months, the job required multi-skilling and he was transferred to the ‘coin room’ which involved some manoeuvring of bags of coins. He would often stumble, and trip over bags of coin because of his leg; he would lose balance off a step. He avoided heavy lifting by breaking units into smaller loads which took longer. The nerve pain in his right foot he had been experiencing for some years was like an electric shock and he was continuing to get pins and needles in his feet and sciatic pain down his leg although his driving ability was unaffected at that time.

Decision

Reasons for decision

His application for the Special Rate was refused and his pension was continued at 100% of the General Rate (‘the decision’). That decision was affirmed on review by the Veterans’ Review Board (‘VRB’) on 2 July 2015. On 28 August 2015, the Applicant applied to the Tribunal for review of the decision. At the hearing, the Applicant made an alternative submission, namely that, should his application for the Special Rate, fail, he was eligible to be paid the Intermediate Rate. LEGISLATION The criteria for payment of the Special Rate of pension are set out in s 24 of the Veterans’ Entitlements Act (1986) (‘the Act’). Generally speaking, if any one of the criteria is not met, an Applicant will not be eligible for payment of pension at that rate. The Tribunal has no discretion in this regard. To qualify for pension at the Special Rate, s 24 requires that the Applicant be in receipt of pension of at least 70% of the General Rate. The Respondent acknowledged that the Applicant satisfies this criterion; there was no dispute that the appropriate General Rate of pension was 100% of the General Rate. In addition, the Applicant must meet other specific tests. An Applicant's incapacity from accepted disabilities must be of such a nature as, of itself alone, to render the applicant incapable of undertaking remunerative work for more than 8 hours a week (for Special Rate), or 20 or more hours a week (for Intermediate Rate).[1] This requires a consideration of:·the Applicant's trade and professional skills, qualifications and experience;·the kinds of work a person with those skills, etc., might reasonably undertake; and·the effect of the applicant's accepted disabilities on his capacity to do such work: s 28[1] : s 24(1)(b) and s 23(1)(b) An Applicant must also:·have been prevented from continuing to undertake a kind of remunerative work that he was undertaking because of incapacity from accepted disabilities alone; ·and because of this, have suffered a loss of salary, wages or earnings on his own account.[2][2] ss 24(1)(c) and 23(1)(c)Applicant’s evidence The Applicant said that his work in the RAAF was as a hospital clerk, undertaking medical administration, which was a paper-based role. He supervised a team of staff between 4 and 10. He said that he injured his back in 1973 playing football for the RAAF and, from that time, suffered mild to severe sciatica and lumbosacral back pain. Over many years, during and after, his service he consulted general practitioners and was prescribed anti-inflammatory medications and, at times, opiates for severe outbreaks of sciatica. He would avoid situations involving bending, stretching, lifting, sitting or standing for long periods. In August 2008, he was diagnosed with PTSD occasioned by having participated in the recovery of three deceased airmen killed in a helicopter crash near RAAF Base Williamtown in August 1981. He had experienced symptoms of PTSD, he said, since approximately 1982 including depression, social withdrawal, experiencing difficulty displaying affection to his wife and three children, alcohol abuse, agoraphobia, OCD amongst other things but had not attributed those symptoms to the event. It had had a profound effect on his personal life. He is on a maintenance dose of antidepressants to alleviate his symptoms of PTSD and expects to continue with these on a permanent basis.

Ratio Decidendi

Legal Principle Established

Dr Anderson thought the Applicant would have been able to continue in the resort management business, which is different to being an employee. Dr Anderson was of the view that he could work at a computer based job with a modified workstation. He thought 2 hours a day to be reasonable for the Applicant to be able to produce accurate work. Breaks would further assist. CONSIDERATION The legislation requires that the evidence before the Tribunal must satisfy a number of tests; if any one of the criteria is not met, the Applicant will not be eligible for payment of pension at the Special or Intermediate Rate. There is no discretion in this regard. Firstly, the Applicant's degree of incapacity from defence-caused conditions must be at least 70% of the General Rate.[3] There was no dispute that the Applicant met this test. [3] : s 24(1)(a) and s 23(1)(a) of the VEA Secondly, for a person aged under 65, as in this case, s 24(1)(b) and s 23(1)(b) of the Act require that an Applicant's incapacity from service-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week (or 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work for the Intermediate Rate). This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work. In Smith v Repatriation Commission [2014] FCAFC 53, the Full Court said in relation to s 24 that:Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity. The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). Section 28 provides assistance in determining whether an Applicant is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.What are the Applicant’s trade and professional skills, qualifications and experience?[4][4] s 28(a) Subsections 24(1)(b) and 23(1)(b) require an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219, where the Court said at 235:... A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.