Pepper and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 652

Pepper and Repatriation Commission (Veterans’ entitlements) [2016] AATA 652 (30 August 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/3569

Re

Nigel Pepper

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 30 August 2016

Place Sydney
The Tribunal affirms the decision under review.

........................[sgd]................................................
Senior Member J F Toohey
CATCHWORDS
VETERANS ENTITLEMENT – special rate – intermediate rate – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran incapable of undertaking part-time or intermittent remunerative work – whether veteran prevented by accepted disabilities alone from continuing in remunerative work – whether veteran ceased to engage in remunerative work for reasons other than his accepted conditions – decision under review affirmed

LEGISLATION
Veterans’ Entitlements Act 1986 ss 19, 23, 24, 28, 120

Military Rehabilitation and Compensation Act 2004

CASES
Chambers v Repatriation Commission [1995] 55 FCR 9

REASONS FOR DECISION
Senior Member J F Toohey
30 August 2016
Background

Mr Nigel Pepper served in the Royal Australian Navy from 2 April 1979 until he was medically discharged on 17 June 2014. He receives a disability pension at 100 per cent of the General rate. He seeks review of a decision by the Veterans’ Review Board (the Board) on 12 June 2015 that he does not qualify for the Special or Intermediate rate of pension.
Mr Pepper suffers from multiple disabilities which the Repatriation Commission (the Commission) has accepted are related to his service for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). They include lumbar and cervical spondylosis, bilateral sensorineural hearing loss, bilateral chondromalacia patellae with patello-femoral subluxation, spiral fracture of the mid shaft of left fourth metacarpal, and bilateral lateral epicondylitis.
Mr Pepper also suffers from patello-femoral osteoarthritis of both knees which has been accepted for the purposes of compensation under the Military Rehabilitation and Compensation Act 2004 but not for the purposes of the VE Act. He suffers from several other disabilities which are not accepted as related to his service.
According to the doctors who gave evidence, the aetiology and symptoms of Mr Pepper’s knee condition are virtually indistinguishable, making it difficult to know the extent to which either or both affect his capacity for work, if at all. The fact that one is not an accepted disability was a relevant consideration in the Board’s determination. In the reasons that follow, I find that Mr Pepper’s claim must fail for reasons different from those of the Board.
Legislation
The legislation concerning the Special and Intermediate rates of pension is in sections 24 and 23, respectively, of the VE Act.
Special rate
To qualify for the Special rate, Mr Pepper must satisfy the criteria in subsection 24(1) of the VE Act. They include that he be under 65 at the time of his claim and the degree of his war-caused incapacity be at least 70 per cent. Neither of these is in dispute.
Subsection 24(1)(b) requires that Mr Pepper be totally and permanently incapacitated,…

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: [2016] AATA 652
Decision Date: 30 August 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Pepper against a decision of the Repatriation Commission regarding his entitlement to the special or intermediate rate of pension under the *Veterans' Entitlements Act 1986* (Cth). The dispute centred on whether Mr Pepper was incapable of undertaking remunerative work for eight or more hours per week due to his accepted disabilities.

The legal issues before the court were whether Mr Pepper was incapable of undertaking remunerative work for eight or more hours per week, whether he was incapable of undertaking part-time or intermittent remunerative work, and whether he was prevented by his accepted disabilities alone from continuing in remunerative work. The court also considered whether Mr Pepper had ceased to engage in remunerative work for reasons other than his accepted conditions.

The court considered conflicting medical evidence from two occupational physicians, Dr Rosenthal and Dr Chase. Dr Rosenthal concluded that Mr Pepper's accepted disabilities precluded him from working more than eight hours a week, including in clerical roles, due to constant pain and significant physical limitations. Dr Chase, however, found that while Mr Pepper's conditions presented some barriers to the type of work he could do, they did not limit the hours he could work, and he remained capable of performing full-time clerical or administrative duties. The court found that Mr Pepper did not satisfy the strict requirements of section 24(1)(c) or section 23(1)(c) of the Act.

Ultimately, the court affirmed the decision under review, finding that despite Mr Pepper's service, disabilities, qualifications, and desire to work, he did not meet the statutory criteria for the special or intermediate rates 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

The report of the rehabilitation consultant dated 24 October 2013 shows that Mr Pepper was completing suitable duties, as his capacity allowed.Medical evidence Dr Thomas Rosenthal and Dr Robin Chase, both occupational physicians, saw Mr Pepper for assessment on 8 March 2016 and 25 November 2015 respectively. They provided written reports and gave oral evidence before the Tribunal. They formed different views of the effects of Mr Pepper’s disabilities on his capacity for work. Dr Rosenthal recorded that Mr Pepper’s back condition had slowly deteriorated over the years and he was now in constant pain; walking and sitting was restricted and he needed to lie down regularly throughout the day to ease the pain. He recorded that Mr Pepper generally needed a stick to get around because of his back condition and had trouble getting out of a chair; he could walk for 200 to 400 metres but generally takes a stick with him; he needed analgesics for his neck and back every day. Dr Rosenthal noted a significant reduction of movement in Mr Pepper’s back, neck, and both shoulders, and a significant reduction in his grip strength. He noted that Mr Pepper had two separate knee conditions but he (Mr Pepper) could not separate the symptoms of each. He concluded that, taking into account his accepted disabilities, Mr Pepper was precluded from working more than eight hours a week, including in clerical and administrative positions, on account of his accepted disabilities alone. Giving evidence, Dr Rosenthal did not dispute Lieutenant Reid’s assessment from the previous year but said he thought Mr Pepper would have had difficulties even then. He thought Mr Pepper could probably not sustain part-time sedentary work because he would have trouble sitting, but he might be able to do five to ten hours work over a week, or he might be able to do from one to one and a half hours a day at a computer. Dr Rosenthal thought that, if Mr Pepper controlled the pain in his knees with medication, he should be able to perform clerical duties (Dr Chase shared his opinion) but he disagreed with Dr Chase’s opinion that Mr Pepper could perform full-time duties. Dr Chase took a similar history and his findings on clinical examination were also similar, in particular Mr Pepper’s severely restricted range of movement in his back. He concluded that Mr Pepper’s accepted conditions place “some barrier regarding the type of work he can do” but none on the hours he could work. He noted that, around the time he was discharged, Mr Pepper was found to be fit to perform clerical or administrative duties and, in his view, that remains the case. Giving evidence, Dr Chase acknowledged Mr Pepper’s widespread osteoarthritis and restricted movement of his shoulders, back and knees, and he agreed that, in order to work full-time, Mr Pepper would have to be able to move around and would probably need a “sit/stand desk”. However, taking into account Mr Pepper’s skills and experience in such roles, he saw no reason he could not work full-time.

Decision

Reasons for decision

It follows that Mr Pepper does not satisfy s 24(1)(c) or s 23(1)(c) and his claim must fail for this reason as well.Conclusion I have a lot of sympathy for Mr Pepper. He has served for many years and suffers many serious disabilities as a result. He is well-qualified and wants to work. Unfortunately, he does not satisfy the strict requirements for the Special or Intermediate rates of pension. For these reasons I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2015/3569
Re	Nigel Pepper
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	30 August 2016
Place	Sydney