Philip Maloney and Repatriation Commission - [2015] AATA 404

[2015] AATA 404

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/1269; 2013/1270

Re

Philip Maloney

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 5 June 2015

Place Sydney
The decision of the Veterans’ Review Board, dated 14 November 2012, that Mr Maloney is not entitled to payment of the pension at either the special rate or the intermediate rate, is affirmed.

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Deputy President J W Constance
Catchwords
VETERANS’ ENTITLEMENTS – pension – special rate of pension – whether incapacity from accepted conditions of itself alone renders applicant totally or permanently incapacitated – non-accepted conditions of obesity and sleep apnoea – time out of workforce and age relevant
VETERANS’ ENTITLEMENTS – pension – intermediate rate of pension – whether incapacity from accepted conditions of itself alone renders applicant incapable of working part-time or intermittently – whether accepted conditions alone prevent from continuing to undertake remunerative work
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 19, 23, 24, 28
Cases
Byrne v Repatriation Commission [2001] FCA 1134
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION

Mr Maloney was born in 1952. He served in the Royal Australian Navy from 1969 until 1982. After completing his training he served as an Ordinary Seaman Cook. By the end of his Navy career he had achieved the rank of Leading Seaman. In 1972, he served on the HMAS Sydney when it was engaged in the Vietnam War.
The Repatriation Commission has accepted that Mr Maloney suffers from a number of medical conditions arising from his military service. As a result, Mr Maloney is currently in receipt of a disability pension at 100 per cent of the general rate. The pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).
On 5 January 2011, Mr Maloney lodged an application for the acceptance of several additional conditions as being war-caused and an increase in the rate at which his pension was payable. The Repatriation Commission accepted that the conditions of lumbar spondylosis and gastro-oesophageal reflux disease were war-caused but refused to increase the rate of pension.
This decision was appealed to the Veterans’ Review Board by Mr Maloney. The Board set aside the decision and decided that Mr Maloney suffered the following conditions which were also war-caused:
·post-traumatic stress disorder;
·alcohol dependence; and
·depression.
Mr Maloney’s application for payment of the pension at the Special Rate was refused. The rate of pension was continued at 100 per cent of the General Rate.
Mr Maloney has applied to the Tribunal for a review of decision of the Veterans’ Review Board. For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
After…

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.

Continue reading Philip Maloney and Repatriation Commission

Details

AGLC: Philip Maloney and Repatriation Commission [2015] AATA 404
Case: [2015] AATA 404
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the case of Philip Maloney and Repatriation Commission, Mr Maloney, a former member of the Australian Defence Force, sought a review of the Veterans’ Review Board’s decision regarding his eligibility for an increased rate of pension. Mr Maloney claimed that his incapacity arising from his accepted war-related conditions of lumbar spondylosis, post-traumatic stress disorder, and alcohol dependence rendered him unable to undertake remunerative work for more than eight hours per week. The primary issue before the court was whether Mr Maloney met the requirements of subsection 24(1)(b) and (c) of the Veterans’ Entitlements Act 1986, which pertains to the special rate of pension for veterans who are incapable of undertaking remunerative work due to their war-caused incapacity.

The court considered the evidence provided by Mr Maloney and the medical practitioners. The weight of evidence suggested that Mr Maloney’s conditions of post-traumatic stress disorder, depression, and alcohol dependence, of themselves alone, rendered him incapable of undertaking remunerative work for periods exceeding eight hours per week. Dr Dinnen, Dr Rosenthal, and Dr Altman opined that Mr Maloney’s psychiatric conditions prevented him from being gainfully employed, while Dr Chase noted that Mr Maloney's difficulty in getting along with people would hinder his return to suitable work. Dr Smith identified Mr Maloney’s alcohol dependence as a limiting factor in his capacity to work. The court found that Mr Maloney's vocational skills and experience as a cook, chef, and car salesman qualified him to undertake the kind of work he had previously engaged in, but his accepted conditions severely limited his ability to do so.

Based on the evidence, the court concluded that Mr Maloney met the requirements of subsection 24(1)(b) for the special rate of pension. The court further found that Mr Maloney was, by reason of his war-caused incapacity, prevented from continuing to undertake remunerative work and was suffering a loss of salary or wages as a result. Consequently, Mr Maloney also satisfied the requirements of subsection 24(1)(c). The decision of the Veterans’ Review Board was affirmed, and Mr Maloney was entitled to the special rate of pension.

Orders

Orders of the court

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Background

Background to the litigation

Mr Maloney has applied to the Tribunal for a review of decision of the Veterans’ Review Board. For the reasons which follow, the decision under review will be affirmed.BACKGROUND After leaving the Navy, Mr Maloney readily obtained employment as a cook and later as a chef in various clubs. His employment in some of these positions was terminated by reason of his inappropriate attitude to his employers and fellow-staff. From approximately 1984 until 1996, Mr Maloney worked in several used car sales businesses. In one business he was promoted to the position of car sales manager. He left this position after a disagreement with the owner. In about 1987 he took a position as a cook in a large hospital. About 18 months later he again obtained a position selling used cars. He changed jobs a number of times; some changes were as a result of his employment being terminated by reason of his behaviour. Mr Maloney’s last employment was as a Used Car Sales Manager at a car dealership. His employment was terminated in 1996 because of what Mr Maloney describes as his “aggressive nature towards staff and my abrupt and occasionally rude treatment of customers…”.[1] He has not been employed since. He last sought employment in 1997.[1] Exhibit A4.LEGISLATION Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension which is being paid to Mr Maloney is payable in accordance with this Part. Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was assessed or last assessed. In determining whether a veteran is eligible for an increase in the rate of pension payable, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 5 January 2011) up to the decision of this Tribunal.[2] As stated by Buchanan J in Smith and Repatriation Commission:[3]The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.[2] Subsection 19(9).[3] [2014] FCAFC 53, [40]. Section 19 sets out the manner in which applications are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:·Section 22 General rate of pension and extreme disablement adjustment;·Section 23 Intermediate rate of pension·Section 24 Special rate of pension.

Evidence

Evidence Before The Court

On 14 February 2012, Dr Altman reported, in part:... in my opinion as a result of his Vietnam war experience and the incident which occurred on return from Vietnam ... Mr Maloney suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence. …… Furthermore in my opinion as result of the above mentioned psychiatric disorders alone he is totally and permanently unfit to work and in my opinion he should be placed on the ”T & PI” Disability Pension. In my opinion he is not well enough to work eight or more hours per week.[14][14] Exhibit A2 p.5.Evidence of Dr Smith, Consultant Psychiatrist Dr Smith assessed Mr Maloney on 13 December 2013 at the request of the Department. He provided reports dated 19 December 2013[15] and 20 December 2013[16] and gave evidence.[15] Exhibit R4.[16] Exhibit R5. On 19 December 2013, Dr Smith reported, in part:It is my opinion that Mr Maloney’s psychiatric disability would not be obvious to a prospective employer. I would add the important caveat that if he was in an intoxicated state when being interviewed this would be readily apparent to a prospective employer. In all probability and whilst under the influence of alcohol he would display inappropriate behaviour including irritability and overt aggressivity.Mr Maloney relinquished work because by his own account he was irritable and agitated in his interaction with work colleagues.It is my opinion that Mr Maloney would have the capacity to work if he were motivated to relinquish his alcohol excess. Motivation for doing so however remains poor. Accordingly his capacity to work is limited based upon his Alcohol Abuse Disorder.Consideration On the basis of the evidence of Mr Maloney, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of a cook and chef (including acting in a managing position), a car salesman and car sales manager. Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Maloney has previously undertaken. In considering the degree to which Mr Maloney’s accepted conditions have reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of the medical practitioners to whose evidence I have referred. Having considered all of the evidence, I am satisfied that the conditions of lumbar spondylosis, post-traumatic stress disorder and alcohol dependence are of such a nature as, of themselves alone, to render Mr Maloney incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The weight of evidence tends to strongly support this view. Dr Dinnen, Dr Rosenthal and Dr Altman are all of the opinion that Mr Maloney’s conditions of post-traumatic stress disorder and depression prevent his being gainfully employed. Whilst Dr Chase is of the opinion that Mr Maloney’s physical disabilities are not as severe as he suggests, he is of the view that Mr Maloney’s inability to get along with people would result in substantial difficulty in his returning to the type of work which he might otherwise reasonably undertake. Dr Smith identified Mr Maloney’s alcohol dependence as limiting his capacity to work.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 19 December 2013, Dr Smith reported, in part:It is my opinion that Mr Maloney’s psychiatric disability would not be obvious to a prospective employer. I would add the important caveat that if he was in an intoxicated state when being interviewed this would be readily apparent to a prospective employer. In all probability and whilst under the influence of alcohol he would display inappropriate behaviour including irritability and overt aggressivity.Mr Maloney relinquished work because by his own account he was irritable and agitated in his interaction with work colleagues.It is my opinion that Mr Maloney would have the capacity to work if he were motivated to relinquish his alcohol excess. Motivation for doing so however remains poor. Accordingly his capacity to work is limited based upon his Alcohol Abuse Disorder.Consideration On the basis of the evidence of Mr Maloney, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of a cook and chef (including acting in a managing position), a car salesman and car sales manager. Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Maloney has previously undertaken. In considering the degree to which Mr Maloney’s accepted conditions have reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of the medical practitioners to whose evidence I have referred. Having considered all of the evidence, I am satisfied that the conditions of lumbar spondylosis, post-traumatic stress disorder and alcohol dependence are of such a nature as, of themselves alone, to render Mr Maloney incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The weight of evidence tends to strongly support this view. Dr Dinnen, Dr Rosenthal and Dr Altman are all of the opinion that Mr Maloney’s conditions of post-traumatic stress disorder and depression prevent his being gainfully employed. Whilst Dr Chase is of the opinion that Mr Maloney’s physical disabilities are not as severe as he suggests, he is of the view that Mr Maloney’s inability to get along with people would result in substantial difficulty in his returning to the type of work which he might otherwise reasonably undertake. Dr Smith identified Mr Maloney’s alcohol dependence as limiting his capacity to work. I am satisfied that Mr Maloney meets the requirements of subsection 24(1)(b).DOES MR MALONEY MEET THE REQUIREMENTS OF SUBSECTION 24(1)(C)? Subsection 24(1)(c) provides:(1) This section applies to a veteran if:……(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1269; 2013/1270
Re	Philip Maloney
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	5 June 2015
Place	Sydney