Peter Willis v Repatriation Commission

Case [2014] AATA 326

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

  1. 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.

  2. 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.

  3. The Commission decided that Mr Willis was not eligible for the special rate.  The Veterans’ Review Board affirmed the Commission’s decision.

  4. Mr Willis then sought a review of the Board’s decision by this Tribunal.

  5. 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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Peter Willis v Repatriation Commission [2014] AATA 326
Case
[2014] AATA 326
Decision Date

CaseChat Overview and Summary

The case of Peter Willis v Repatriation Commission was heard by the Federal Court of Australia and concerns the eligibility of Mr Willis for a special rate of pension under the Veterans’ Entitlements Act 1986. Mr Willis, a Vietnam War veteran, has various war-caused conditions including post-traumatic stress disorder, alcohol dependence, and peripheral neuropathy. The court was tasked with determining whether Mr Willis was prevented from undertaking remunerative work due to his war-caused incapacities and if he would be suffering financial loss if he were free of these incapacities.

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

Section 28 makes further provision for the determination of capacity to undertake “remunerative work”.facts Unless stated otherwise the facts stated in the Introduction and the following findings of fact are based on the evidence of Mr Willis. Mr Willis is 63 years old. He grew up in country Victoria and attended school until he was aged 15. He then worked in a small supermarket until he joined the Australian Army when he was aged 17 years and 9 months. Mr Willis rendered “operational service” in Vietnam during 1970 and 1971. He was a front line infantry soldier. Following his tour of duty he was posted back to Holsworthy Army Base as an instructor of new recruits. He took an early discharge in 1973. His service in the Army between 2 October 1968 and 20 July 1973 is “eligible service” under the Act. Mr Willis has the following conditions which have been accepted as “war-caused” under the Act:·post-traumatic stress disorder;·alcohol dependence;·bilateral sensorineural hearing loss;·bilateral tinnitus;·tinea;·diabetes mellitus;·peripheral neuropathy. For approximately three months after his discharge Mr Willis worked as a labourer in a brickworks stacking bricks. He then worked for several months in a casting plant. For approximately 10 years following his discharge Mr Willis worked as a casual employee in vineyards and orchards in northern Victoria doing grape picking, vine pruning and replanting and fruit picking. At the end of the ten year period he found it increasingly difficult to get casual work by reason of mechanisation and an increasing supply of labour. In 1984 Mr Willis moved to Melbourne where he worked as a labourer and as a storeman with a concreting business for approximately two and a half years. He then gained employment in car manufacturing as a machine operator and as a cleaner. In approximately 1988 Mr Willis moved to the Yarra Valley. He worked as a labourer in a vineyard. After two years he was promoted to the position of foreman. His duties included pruning vines and supervising others doing this work. He held this position for approximately four and one half years.. His employment at the vineyard was terminated following arguments between him and his manager. He then obtained employment in a smallgoods factory as a labourer. He performed various tasks including sausage-filling, packing and operating a smoke machine. For almost six months Mr Willis worked doing home-maintenance and worked on a flower farm. He then returned to work at the smallgoods factory. In February 1998 Mr Willis injured his shoulder in a fall at home. He suffered neck pain radiating into his right shoulder. He had three months off work at the smallgoods factory as a result of this injury. When Mr Willis was ready to return to work at the factory there was no work available for him and he ceased that employment. From about 1999 Mr Willis has suffered from pain in his lower back which on occasions radiated to his left upper leg. At times this caused his legs to feel weak.

Evidence

Evidence Before The Court

In his statement dated 20 October 2013 Mr Lindsay stated, in part:12 I found he seemed to suffer from hypervigilance, so that he was always on the alert for threats. He reacted uncontrollably to sudden sharp noises…. He had a serious anger management problem, and many times I witnessed him fly off the handle … Often after these outbursts he realised what he had done, and how inappropriately and uncontrollably he had acted, and would be afflicted with a bout of depression which could last for many days afterwards, rendering him incapable of achieving anything during that period.13Peter informed me that he had fallen over several years earlier when drunk, whilst doing some cleaning or gardening duties, and had hurt his neck and shoulder, which in turn had caused him to lose his employment at Warburton at the smallgoods factory. By the time I caught up with him in 2000, I noticed no signs of any impairment in his shoulder, neck or back, and he made minimal complaints of discomfort in those areas to me. He was certainly well able to carry a carton of beer any time he wished, and he frequently did. As well as commercial beer, he readily consumed copious quantities of homebrew.14In the two years that I was in regular contact with him, I did not observe any physical impediment to him working. Rather, I formed the view that he was, mentally, totally incapable of maintaining regular employment. He could not control his anger, and he could flare up at the smallest provocation, where most people would let the irritation ride. He did not have the flexibility to work with people which is required to maintain any regular employment. He was unreliable due to periods of black depression, when he was incapable of leaving the house for any purpose. Further, his alcoholism was a serious problem.15I noticed he was an extremely keen gardener, and he has an encyclopaedic knowledge about plants. I got him a couple of jobs pruning fruit trees for people in the area, usually for something like $100 per day. However, I had to make the arrangements, and also drive him to and from the property to ensure he got there. Once involved in the task, he was brilliant. However, he was not able to persevere or to organise himself.…19… He seemed physically quite capable of satisfactory carrying out the several pruning jobs I organised for him, and I could see no physical reason why he could not undertake a successful handyman gardening service for domestic and small rural landowners …Evidence of Mr Cunningham, Organic Dairy Farmer Mr Cunningham is a part-owner of the dairy farm on which Mr Willis resides. He provided statements dated 15 March 2010, 20 August 2010 and 3 December 2013[6] and gave evidence.[6] Exhibits AA3, AA4 and AA5 respectively. In his statement of 20 August 2010 Mr Cunningham said, in part:2During the time [Mr Willis] has lived on my property, there have been periods when he has been able to do one or two hours of work a day. The types of duties he has performed range from tending barley sprouts growing in a hothouse, to driving a truck on the farm, to helping distribute hay or other feed to cattle, to feeding the pigs.3I do not have work available all the time but he has been useful, when able, particularly in driving a truck in tandem with my tractor, which typically will involve one or two hours at a time per day. I would reward him with provisions from the farm.4We had an arrangement going for a while whereby he was responsible for caring for the pigs, primarily feeding them daily, which would take from half an hour to one hour per day, in return for which he would receive a pig every few months for eating. However, in recent months he has abandoned that task, and I have to do the job myself.5This withdrawal by Mr. Willis from the pig caring arrangement is typical of his general presentation. When his mental state is good, Mr. Willis can perform light duties in an excellent manner. He could do a lot of work on my farm, and I believe he could perform similar work for other farmers in the district, as there is a demand for agricultural labour performed by a reliable worker in this area.6However, this is the problem for Mr. Willis: he is not reliable, due to his mental state. He might be fine one day, then for several days his blinds will be drawn, curtains closed, and he is unfit mentally to even come out of his house, let alone do any work. I sometimes see lights on in his cottage at all hours of the night, then he will be too tired to wake up for work the following day. A potential employer has no way of knowing whether he will attend for work on any day, due to his mental problems.7Physically, Mr. Willis appears perfectly capable of light duties employment on a farm. He would need to build up to longer hours gradually, as he has lost condition and endurance over the years, and he would have to learn to pace himself. I have seen him attack his garden with vigour one day, then be laid up, physically and mentally exhausted, the next day, because he has overdone things. He can be a willing worker, within his limitations, and has a desire to engage in work, but lacks the mental strength to stick to any task, which he finds frustrating. 8As mentioned above, during the last several months he has given up tending the pigs, and he has rarely been available to do any work for me spending most days shut up in his house with the blinds closed. He would not have been performing even one hour per week of labour during the last three months. Whilst his alcohol consumption has perhaps reduced to little, he still indulges in the occasional “bender”, and appears to drink consistently.

Decision

Reasons for decision

For the reasons already stated, I am satisfied that without the incapacity caused by post‑traumatic stress disorder, alcohol dependence and peripheral neuropathy Mr Willis could be employed as a farmhand. On this basis I am satisfied that he would not be suffering the financial loss referred to.conclusion For the reasons given I have decided that Mr Willis is entitled to a special rate of pension in accordance with section 24 of the Act. In these circumstances it is not necessary to consider his entitlement to an intermediate rate under section 23.[26][26] Smith v Repatriation Commission (supra) at para.73. The decision of the Veterans’ Review Board made 15 April 2009 will be set aside. In substitution for the decision set aside it will be 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).

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.