Parkes and Repatriation Commission (Veterans' entitlements) - [2020] AATA 3358

Parkes and Repatriation Commission (Veterans' entitlements) [2020] AATA 3358 (31 August 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/3436
Re:KEVIN PARKES
APPLICANT

REPATRIATON COMMISSIONAnd
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:31 August 2020
Place:Brisbane

The reviewable decision of 9 April 2018 is varied with the Applicant to receive the disability pension at 100% of the general rate with the extreme disablement adjustment with effect from 5 September 2017.
..................................[SGD]......................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – special rate – decision under review varied – extreme disablement adjustment
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Reidlinger and Repatriation Commission [2016] AATA 646
SECONDARY MATERIALS
Guide to Determining Impairment and Compensation 2016
REASONS FOR DECISION
Senior Member Katter
31 August 2020
APPLICATION

The decision under review affirmed the Applicant’s disability pension at 100% of the general rate.
BACKGROUND
The Applicant enlisted in the Australian Army on 21 January 1964 and was discharged on 20 January 1973[1]. The Applicant served in Vietnam from 21 May 1969 to 30 April 1970[2].
[1] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, paragraph 7.
[2] Exhibit 1, T-documents, T111, page 376.
By a claim form lodged on 27 November 2015, at part E, the Applicant stated as to details of new disabilities now claimed as war or defence caused and at part G stated reasons for the ‘application for increase’[3]:
[3]           Exhibit 1, T-documents, T69.1, pages 239-241.
“Disability 1 Acquired Cataract
Signs and symptoms Partial loss of vision, dry eyes and reflections of lens in      vision
How do you believe your service caused, contributed to, or aggravated this disability? Refer to statement by veteran
Veteran spent more than 2250 hours in tropical area whilst in service
Veteran was exposed to more than 0.5 Sieverts of atomic radiation
See Specialists Reports Attached …
Disability 2 Haemorrhoids
Signs and Symptoms Pain in rectum, straining at stool for all bowel movements,           discharge of fluids, bleeding and inability to sit
How do you believe your service caused, contributed to, or aggravated this disability? Straining at stool whilst constipated two weeks prior to clinical onset of      Haemorrhoids
See statutory declaration by veteran
See Attached specialists reports
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 6th April           1969
Disability 3 Malignant neoplasm of the prostate
Signs and Symptoms No symptoms
Clinical diagnosis by Dr Steven Lun and treated by Brachytherapy
How do you believe your service caused, contributed to, or aggravated this disability? Veteran spent 345 days on the ground in Vietnam
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 7th May           2014
…
Which of your accepted disabilities have become worse since they were last           assessed by the Department and in what way?
Cervical spondylosis See MRI and spec. reports [by] Dr R Noonan
Problem has…

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 3358
Decision Date: 31 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a claim by the Applicant for an increase in his disability pension, specifically seeking the special rate pension under section 24(2A) of the *Veterans' Entitlements Act 1986* (Cth). The Applicant, a veteran who served in Vietnam, claimed several defence-caused conditions, including acquired cataract, haemorrhoids, and malignant neoplasm of the prostate, and also sought an increase in his pension for cervical spondylosis. The primary dispute between the Applicant and the Repatriation Commission centred on whether the Applicant met the criteria for the special rate pension, particularly the requirement that his incapacity from war-caused injury or disease alone prevented him from continuing his last paid work.

The Tribunal was required to determine if the Applicant satisfied the conditions outlined in section 24(2A) of the Act. This included assessing whether the Applicant, having turned 65 before making his application, was prevented from continuing his last remunerative work due to incapacity from war-caused injury or disease. Furthermore, the Tribunal had to consider whether this prevention resulted in a loss of salary or wages that would not have been suffered if he were free from that incapacity, and whether he was totally and permanently incapacitated, meaning his war-caused incapacity alone rendered him incapable of undertaking remunerative work for more than 8 hours per week.

The Tribunal found that the Applicant had made an application for an increase in his pension after turning 65, and that his pension was assessed at 100% of the general rate, satisfying preliminary conditions of section 24(2A). While the Repatriation Commission did not dispute the Applicant's incapacity to undertake remunerative work for more than 8 hours per week, it contended that the "alone" test under section 24(2A)(d) was not met. However, the Tribunal ultimately varied the reviewable decision, granting the Applicant the extreme disablement adjustment in addition to his 100% general rate disability pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The decision under review affirmed the Applicant’s disability pension at 100% of the general rate. BACKGROUND The Applicant enlisted in the Australian Army on 21 January 1964 and was discharged on 20 January 1973[1]. The Applicant served in Vietnam from 21 May 1969 to 30 April 1970[2]. [1] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, paragraph 7. [2] Exhibit 1, T-documents, T111, page 376. By a claim form lodged on 27 November 2015, at part E, the Applicant stated as to details of new disabilities now claimed as war or defence caused and at part G stated reasons for the ‘application for increase’[3]: [3] Exhibit 1, T-documents, T69.1, pages 239-241.“Disability 1 Acquired Cataract Signs and symptoms Partial loss of vision, dry eyes and reflections of lens in visionHow do you believe your service caused, contributed to, or aggravated this disability? Refer to statement by veteran Veteran spent more than 2250 hours in tropical area whilst in serviceVeteran was exposed to more than 0.5 Sieverts of atomic radiationSee Specialists Reports Attached …Disability 2 HaemorrhoidsSigns and Symptoms Pain in rectum, straining at stool for all bowel movements, discharge of fluids, bleeding and inability to sitHow do you believe your service caused, contributed to, or aggravated this disability? Straining at stool whilst constipated two weeks prior to clinical onset of HaemorrhoidsSee statutory declaration by veteran See Attached specialists reportsWhen did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 6th April 1969 Disability 3 Malignant neoplasm of the prostate Signs and Symptoms No symptoms Clinical diagnosis by Dr Steven Lun and treated by Brachytherapy How do you believe your service caused, contributed to, or aggravated this disability? Veteran spent 345 days on the ground in Vietnam When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 7th May 2014 …Which of your accepted disabilities have become worse since they were last assessed by the Department and in what way? Cervical spondylosis See MRI and spec. reports [by] Dr R Noonan Problem has become more acute with intense pain in neck, arms and hands Condition had been diagnosed with greater accuracy by Dr Richard Noonan on 12th December 2012Dr Eric Guazzo (Neurosurgeon) is presently managing the condition and a copy of his report is includedVeteran is presently under a pain management programme overseen by his general practitioner.” The statement with that claim form lodged on 27 November 2015 states[4]:“ACQUIRED CATARACT(a) having sunlight exposure to the unprotected eye for at least 2250 hours while in a tropical area, or having equivalent sunlight exposure in other latitude zones, before the clinical onset of acquired cataract. Veteran served 345 days in South Vietnam (10 deg 26’ N) without eye protection. …(f) having received a cumulative equivalent dose of at least 0.5 Sievert of atomic to the affected eye before the clinical onset of acquired cataract. Veteran served in the instrument section of Northern Command Workshops (Bulimba) from 6th April 1972 to 19th December 1972. Instrument section was contaminated exposing all staffs to atomic radiation of approximately 10 Sievert per annum. Veterans exposure was approximately 1.58 Sievert.” [4] Exhibit 1, T-documents, T69.10, page 250.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The reviewable decision of 9 April 2018[113] of the Veterans’ Review Board, which affirmed the decision under review, being the decision dated 8 August 2017[114], as to the assessment of disability pension at 100% of the general rate[115] will be varied, with the Applicant to additionally receive the extreme disablement adjustment. [113] Exhibit 1, T-documents, T114.1, pages 402-410.[114] Exhibit 1, T-documents, T108, pages 346-353.[115] Exhibit 1, T-documents, T114.1, pages 402-410.DECISION The reviewable decision of 9 April 2018 is varied with the Applicant to receive the disability pension at 100% of the general rate with the extreme disablement adjustment with effect from 5 September 2017.

Ratio Decidendi

Legal Principle Established

The contention between the parties was particularised at the hearing as being whether or not the Applicant satisfied specifically s 24(2A)(d) and (e) of the Act[49]. [49] Transcript, 10 October 2019, P-10, P-12 and P-61.CONSIDERATION Section 24 of the Act relevantly states[50]: [50]Compilation No. 162, registered on 5 May 2020. Section 24 has the following legislative history: s 24 am No 106, 1986; No 134, 1988; No 228, 1992; No 98, 1994; No 157, 1997; No 52, 2004 (as am by No 89, 2007); No 66, 2007; No 174, 2015; No 59, 2017.“Special rate of pension …(2A) This section applies to a veteran if: (a) 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 (b) the veteran had turned 65 before the claim or application was made; and (c) paragraphs (1)(a) and (1)(b) apply to the veteran; and (d) the veteran is, because of incapacity from war-caused injury or war- caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and (e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and (f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and (g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and (h) section 25 does not apply to the veteran.” The Applicant has made an application under section 15 for an increase in the rate of the pension that the Applicant is receiving[51]: s 24(2A)(a). [51] Exhibit 1, T-documents, T69.1, pages 237-245; and T109, pages 354-369. The Applicant had turned 65[52] at the time of the application on 5 September 2017[53]: s 24(2A)(b). [52] Exhibit 1, T-documents, T2, page 15.[53] Exhibit 1, T-documents, T109, pages 354-369. The Applicant was approximately 69 years of age at the time of the relevant application. There has been an assessment as to the Applicant receiving 100% of the general rate, as referred to in sub-paragraph 24(1)(a)[54]: s 24(2A)(c). [54] Exhibit 1, T-documents, T108, pages 346-353 and T116, pages 423-431. Section 24(1)(b), as referred to in s 24(2A)(c), states that ‘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 periods aggregating more than 8 hours per week’. The Respondent did not submit that the Applicant was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, with the Respondent submitting that the ‘alone’ test was not satisfied as to sub-paragraphs 23(3A)(d) and 24(2A)(d)[55]. [55] Exhibit 4, Statement of Issues, Facts and Contentions of the Respondent, paragraph 4.2, p 2.