Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/2907
Veterans' Appeals Division )Re: PETER WILLIS
Applicant
And: REPATRIATION COMMISSION
Respondent
TRIBUNAL: Deputy President J W Constance
DATE: 11 July 2014
PLACE: Melbourne
CORRIGENDUM TO DECISION [2014] AATA 326
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth), decision dated 27 May 2014 is amended as follows:
In the decision paragraph insert the words:
3.The effective date for the payment of the pension at the Special Rate to Mr Willis is 23 October 2013.
In the reasons for decision insert as paragraph 94 the words:
94.The effective date for the payment of the pension at the Special Rate to Mr Willis will be 23 October 2013.
………………[sgd]………………
Deputy President
[2014] AATA 326
Division Veterans' Appeals Division File Number(s)
2009/2907
Re
Peter Willis
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Deputy President J W Constance
Date 27 May 2014 Place Melbourne 1. The decision of the Veterans’ Review Board made 15 April 2009 is set aside.
2. In substitution for the decision set aside it is decided that the decision of the Repatriation Commission made 12 September 2007 is set aside and that Mr Willis is entitled to payment of a pension at the special rate in accordance with section 24 of the Veterans’ Entitlements Act 1986 (Cth).
.............................[sgd]...........................................
Deputy President J W Constance
Catchwords
VETERANS' AND MILITARY COMPENSATION – special rate of pension – type of remunerative work - whether applicant prevented from continuing to undertake that work by reason of incapacity from war-caused diseases (or any of them) alone – whether applicant suffered a loss of salary, wages or earnings on his own account by reason of his being prevented from undertaking remunerative work – whether applicant would be suffering the financial loss if he was free of the war-caused incapacity – decision under review set aside.
Legislation
Veterans’ Entitlements Act 1986 (Cth) sub-ss 24(1), 24(2), s 28
Cases
Repatriation Commission v Butcher [2007] FCAFC 36
Smith v Repatriation Commission [2014] FCAFC 53
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
introduction
Mr Willis is a veteran of the war in Vietnam and the recipient of a pension under the Veterans’ Entitlements Act 1986 (Cth). His pension is paid at 100 per cent of the general rate.
In August 2007 Mr Willis lodged a claim with the Repatriation Commission seeking that his pension be paid at the special rate, which is substantially greater than the general rate. The conditions of eligibility for the special rate payment are set out in section 24 of the Act.
The Commission decided that Mr Willis was not eligible for the special rate. The Veterans’ Review Board affirmed the Commission’s decision.
Mr Willis then sought a review of the Board’s decision by this Tribunal.
For the reasons which follow the decision under review will be set aside and in substitution it will be decided that Mr Willis is entitled to payment of the disability pension at the…
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- AGLC
- Peter Willis v Repatriation Commission [2014] AATA 326
- Case
- [2014] AATA 326
- Decision Date
CaseChat Overview and Summary
The court identified the types of remunerative work Mr Willis had undertaken, including labouring in vineyards, working in a factory, performing handyman services, and working as a farm labourer. It was established that Mr Willis was prevented from continuing these types of work primarily due to his post-traumatic stress disorder and peripheral neuropathy, which rendered him incapable of any form of employment according to medical experts. The court also considered the impact of Mr Willis' physical injuries, concluding that while they would restrict the type of work he could undertake, they would not prevent him from doing part-time light duties or process work.
The court reasoned that Mr Willis' inability to maintain regular employment was due to his mental incapacities rather than physical limitations. Evidence from his landlord and acquaintances indicated that while Mr Willis was physically capable of performing light duties, his mental health issues, such as hypervigilance, anger management problems, and episodes of depression, made him unreliable for consistent work. Therefore, the court found that Mr Willis would not be suffering the financial loss if he were free of his war-caused incapacities, as his primary barrier to employment was his mental health.
Ultimately, the court set aside the previous decision of the Veterans’ Review Board and determined that Mr Willis was entitled to a special rate of pension under section 24 of the Veterans’ Entitlements Act 1986. This decision recognised that Mr Willis' war-caused mental conditions were the primary factors preventing him from undertaking remunerative work.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In light of the Commission’s concession, the issues remaining for determination all arise in applying subparagraph 24(1)(c) as informed by the application of subsection 24(2). They are set out below.(1)What was the “remunerative work” that Mr Willis was undertaking?(2)Is Mr Willis prevented from continuing to undertake that work by reason of incapacity from his war-caused diseases (or any of them) alone?(3)If so, is he suffering, by reason of that prevention, a loss of salary, wages or earnings on his own account?(4)If so, would Mr Willis be suffering that loss if he were free of the incapacity?considerationIssue 1: What was the “remunerative work” that Mr Willis was undertaking? In identifying the work which was being undertaken, it is the type of work which is relevant, not Mr Willis' last job.[21][21] Repatriation Commission v Butcher [2007] FCAFC 36, [13]. On the basis of the evidence of Mr Willis I am satisfied that he was undertaking the following remunerative work:·as a labourer and/or foreman in vineyards and orchards engaged in tasks such as pruning, planting and harvesting;·as a process worker in a factory;·as a handyman doing light maintenance work and gardening;·as a farm labourer engaged in tasks such as caring for livestock, working on crops and driving farm vehicles.The parties agree that these are the types of remunerative work relevant to Mr Willis’ application.Issue 2: Is Mr Willis prevented from undertaking this remunerative work by reason of his incapacity from his war-caused diseases (or any of them) alone? In considering this question it is necessary to look at each type of remunerative work undertaken by Mr Willis.[22][22] Willis v Repatriation Commission [2012] FCA 399. Dr Holwill, Consultant Psychiatrist, who assessed Mr Willis in both 2009 and 2013, is of the opinion that he is totally incapacitated for work and that his condition has worsened since 2009. In his view the conditions of post-traumatic stress disorder and peripheral neuropathy alone render him incapable of any form of employment. Dr Horsley, Occupational Physician, is also of the view that Mr Willis is totally incapacitated for work of any kind. While Dr Horsley deferred to the views of psychiatrists, she regarded post-traumatic stress disorder and alcohol dependence as “major barriers” to Mr Willis returning to work. Mr Willis' general practitioner, Dr Hayes, also is of the opinion that Mr Willis is unable to work in any capacity as a result of his post-traumatic stress disorder. These views are consistent with the evidence of Mr Willis as to the reasons he ceased working on Mr Cunningham’s farm. In considering the effect of Mr Willis’ neck, shoulder and back conditions, Dr Horsley said that they would restrict the type of work which Mr Willis could undertake as a lifting restriction would be appropriate. Dr Hayes agreed with the lifting restrictions and was of the opinion that Mr Willis could do part-time light duties for 14-15 hours per week. Dr Haynes was of the view that Mr Willis' physical injuries would not prevent his doing part-time light process work and as a part-time handyman. This is consistent with Mr Willis’ evidence that he has been able to manage pain in his shoulders and back with medication.