Paxton and Repatriation Commission (Veterans' entitlements) - [2019] AATA 1305

Paxton and Repatriation Commission (Veterans' entitlements) [2019] AATA 1305 (17 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3476
Re:Richard Paxton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:17 June 2019
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member Linda Kirk
CATCHWORDS
VETERANS’ AFFAIRS — Veterans’ entitlements — Special rate of pension - Intermediate rate of pension— Whether Applicant's incapacity renders him incapable of undertaking remunerative work for period aggregating more than eight or 20 hours a week - Whether incapacity from war-caused injuries “alone” prevented the veteran from undertaking remunerative work — Whether the veteran genuinely sought to engage in remunerative work - Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours - Applicant had no further work opportunities, suffers from non-service related conditions - Applicant fails 'alone' test - No evidence to show that Applicant sought to genuinely seek alternative remunerative work - reviewable decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Chambers v Repatriation Commission [1995] FCA 1144
Flentjar v Repatriation Commission [1997] FCA 1200
Forbes v Repatriation Commission [2000] FCA 328
Leane v Repatriation Commission [2004] FCAFC 83
Re Cavell and Repatriation Commission (1986) 10 ALN N233
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
Smith v Repatriation Commission [2014] FCAFC 53
Starcevich v Repatriation Commission [1987] FCA 342
Summers v Repatriation Commission [2015] FCAFC 36
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Senior Member Linda Kirk
17 June 2019
INTRODUCTION

Mr Richard Paxton (‘the Applicant’) was born in 1949. He was conscripted into the Australian Army for National Service from 1 October 1969 to 31 December 1971. He rendered operational service for the purposes of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’) from 2 December 1970 to 18 November 1971.
On 9 July 2013 the Applicant lodged a claim for ‘Back’ stating it was related to ‘heavy lifting in Vietnam as storeman’.[1]
By Determination dated 30 October 2013, the Repatriation Commission (‘the Respondent’) accepted liability for lumbar spondylosis pursuant to the Act, with effect from 9 April 2013. The Determination increased disability pension to 40% of the General Rate.[2] This was an overall assessment that included incapacity for a previously accepted war-caused condition of bilateral sensorineural hearing loss.
On 11 November 2013 the Applicant lodged an application for review of the Determination dated 30 October 2013 to the Veterans’ Review Board (‘VRB’).[3]
On 12 December 2013 the VRB set aside an earlier decision of the Respondent dated 29 May 2012 and accepted liability for a claim made by the Applicant on 24 October 2011 for PTSD, alcohol dependence, irritable bowel syndrome, gastro-oesophageal reflux disease, lichen simplex chronicus and depressive disorder.
In a decision…

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: [2019] AATA 1305
Decision Date: 17 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Paxton and the Repatriation Commission concerning the applicant's entitlement to a special or intermediate rate pension. The applicant sought to establish that his war-caused incapacity rendered him unable to undertake remunerative work for more than eight hours per week, and that this incapacity alone prevented him from continuing his previous employment, leading to a loss of earnings.

The primary legal issues before the Tribunal were whether the applicant's incapacity from service-caused conditions, of itself alone, rendered him incapable of undertaking remunerative work for more than eight hours per week, and whether this incapacity alone prevented him from continuing his earlier remunerative work. The Tribunal also had to consider whether the applicant had genuinely sought alternative remunerative work and whether his war-related conditions were the substantial reason for his inability to work.

The Tribunal applied the principles established in *Smith v Repatriation Commission*, which outline a composite test for eligibility under sections 24(1)(b) and (c) of the relevant Act. This test requires that the war-related incapacity alone renders the veteran incapable of working more than eight hours per week, and that this incapacity alone prevents them from continuing earlier remunerative work, causing a loss of earnings. The Tribunal found that while the applicant was incapacitated, the evidence did not demonstrate that his service-caused conditions were the sole or substantial reason for his inability to work more than eight hours per week or to continue his previous employment. Furthermore, the Tribunal noted a lack of evidence that the applicant had genuinely sought alternative remunerative work.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for payment of a pension at the special or intermediate rate. The decision under review was affirmed.

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

The following material was before the Tribunal:·Applicant’s Statement of Facts, Issues and Contentions dated 27 February 2018;·Statement of the Applicant dated 18 November 2016 (Exhibit A1);·Medical Report of Dr Thomas Rosenthal dated 14 November 2016 and briefing letter dated 31 October 2016 with attachments (Exhibit A2);·Medical Report of Dr Anthony Dinnen dated 13 July 2017 and briefing letter dated 26 June 2017 (Exhibit A3);·Applicant’s Medication Sheet from Coffs Kidney And Hypertension Clinic as at 30 January 2019 (Exhibit A4) ·Respondent’s Statement of Facts, Issues and Contentions dated 6 June 2018;·Respondent’s s 37 documents (T1 to T20, pages 1-270) (Exhibit R1);·Respondent’s Supplementary T documents (T21-T44, pages 271 - 446) (Exhibit R2);·Medical Report of Dr Selwyn Smith dated 14 March 2017 and briefing letter dated 9 March 2017 (Exhibit R3);·Medical Report of Dr Robin Chase dated 4 April 2017 and briefing letter dated 9 March 2017 (Exhibit R4);APPLICANT’S EVIDENCEEmployment before, during and after service Prior to his conscription into the Army, the Applicant worked as a spare parts salesman with Thomson Ford in Parramatta from 1965 to 1969. During his 12 months deployment in Vietnam, the Applicant was stationed in Nui Dat and Vung Tung. He worked in warehouses and driving vehicles and had two short periods providing hot water to fire support bases.[9] Following his discharge from the Army, the Applicant returned to his previous occupation at Ford as a spare parts salesman. From 1971 until 1975, he held a full-time position in this role. He then moved into the field of construction and spent two years building a gas plant, before returning to his previous position with Ford in Canberra for another three years.[10] Employment with State Railways The Applicant commenced working with the NSW State Railways in Grafton in 1979, initially as a labourer before becoming Team Leader in maintenance in the mid-1990s,[11] and then a Safety Officer.[12] During his oral evidence, the Applicant explained that his work as a Safety Officer was to protect the rail corridor, which is three metres either side of the running rail. He had to ensure that blocks were put in place by train control back in Broadmeadow and Newcastle so that no train could enter the section of the track during certain periods of time.[13] He had to fill out forms relying on information conveyed to him over the phone and read it back to confirm its accuracy.[14] In 2004, Australian Rail Track Corporation (ARTC) took over State Rail. Following this, the Applicant’s role changed to that of a labourer.[15] In May 2005, he was made redundant and he received a redundancy payment of $50-60,000.[16] Following his redundancy, he did some small roles and then commenced work with Laing O’Rourke in early 2006.[17] He was employed by Laing O’Rourke to work as a casual protection officer on a major job being the concreting of the whole of the North Coast.[18] He worked in this role until November 2008.[19]

Decision

Reasons for decision

Accordingly, the Applicant does not meet the criteria to be eligible for payment of pension at the Special or Intermediate rate.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The ameliorating provision does not apply in the Applicant’s circumstances because he has not been genuinely seeking alternative remunerative employment. Further, it does not apply because the evidence does not point to the accepted conditions being a substantial reason for the Applicant’s inability to work.CONSIDERATION AND REASONS The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, the evidence of the Applicant and the expert medical evidence. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case and to be heard by the Tribunal. 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. In Smith v Repatriation Commission [2014] FCAFC 53; (2014) FCR 452 (‘Smith’), Buchanan J elaborated at [47] – [49] upon the legislative requirements under s 24(1)(b) and (c) of the Act: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 eight 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). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (‘a veteran who isincapacitated...’). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.(1) Does the Applicant’s incapacity from service-caused conditions of itself alone render him incapable of incapable of undertaking remunerative work? For a person aged under 65, s 24(1)(b) and s 23(1)(b) of the Act require that the 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).