Potiuch and Repatriation Commission - [2000] AATA 320

DECISION AND REASONS FOR DECISION [2000] AATA 320

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/175

VETERANS' APPEALS DIVISION       )
           Re      ROMAN OREST POTIUCH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date26 April 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review, and in substitution therefor, decides that the applicant is entitled to special rate as from 21 March 1996.
  (Signed)
`  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' APPEALS – veterans' entitlements – disability pension – special rate – discussion of special rate test – alone test – whether alone test satisfied – types of work Tribunal may consider – standard of reasonable satisfaction required – medical evidence – nature of work undertaken
Veterans' Entitlements Act 1986 s.24
Repatriation Commission v Smith (1987) 15 FCR 327
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Birtles v Repatriation Commission (1991) 24 ALD 545
Sheehy v Repatriation Commission (1996) 41 ALD 205
Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

26 April 2000 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

This is an application by Mr Roman Potiuch (the applicant) for review of a decision of the Veterans' Review Board dated 2 March 1998 (T4/131) affirming a decision of the respondent dated 14 August 1996 (T2/5) granting the applicant disability pension at 100% of the general rate.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), together with five exhibits, four lodged by the applicant (Exhibits A1-A4) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Dr D. Beard, General Surgeon, Dr M. Atchison, Psychiatrist, and Dr J. Condon, Psychiatrist . The respondent called Dr O. Osti, Orthopaedic Surgeon, as a witness. The applicant was represented by Mr G. Pickhaver and the respondent was represented by Ms S. Maharaj, both of counsel.
The issue before the Tribunal is whether or not the applicant is entitled to pension at the special rate. The parties being in agreement as to all other aspects of section 24 of the Veterans' Entitlements Act 1996 (the Act), the sole aspect before the Tribunal is whether or not the applicant satisfies sub-section 24(1)(c) of the Act.
history of the application
The applicant was born on 12 November 1945 and served in the Royal Australian Army as a conscript from February 1966 to February 1968. He has bronchitis, acute naso-pharyngitis, post traumatic stress disorder (PTSD), depressive disorder, gastro-oesophageal, reflux disease, psycho-active substance abuse or dependence and peptic ulcer disease as accepted disabilities under the Act.
The respondent determined on 14 August 1996 (T3/79) that pension should be paid at 100% of the…

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 Potiuch and Repatriation Commission

Details

AGLC: Potiuch and Repatriation Commission [2000] AATA 320
Case: [2000] AATA 320
Decision Date: 26 April 2000

CaseChat Overview and Summary

The case of Potiuch and Repatriation Commission involved the applicant, Potiuch, appealing a decision regarding his entitlement to a special rate disability pension under the Veterans' Entitlements Act 1986. The dispute centred on whether Potiuch was fit to perform work, specifically considering the types of employment he could reasonably undertake, and whether he satisfied the 'alone test'. This test stipulates that a person is unable to perform any work that is reasonably available to them, except for the work they are actually doing. The matter was heard and determined by the Administrative Appeals Tribunal (AAT).

The legal issues that the Tribunal needed to decide included the interpretation of the 'alone test' and the types of work that the Tribunal could consider when assessing whether Potiuch was fit to work. Another significant issue was the standard of proof required to establish that Potiuch was unable to perform any work that was reasonably available to him. The Tribunal also had to evaluate the medical evidence presented and determine the nature of work undertaken by Potiuch, which would impact the assessment of his disability pension eligibility.

The Tribunal found that it was reasonably satisfied, based on the evidence provided, that Potiuch was fit to perform the duties of a driver, which included both driving and some road gang work. The Tribunal noted that Potiuch's medical history and the various reports from medical professionals, particularly Dr. Beard, indicated that Potiuch was fit for his previous duties and that the claims of disability were not substantiated by physical examination. The Tribunal concluded that Potiuch was capable of performing the work of a driver, and thus, he did not satisfy the 'alone test'. Consequently, the Tribunal decided that Potiuch was not entitled to the special rate disability pension from the date specified in the decision.

In summary, the Tribunal set aside the original decision and determined that Potiuch was entitled to the special rate disability pension from 21 March 1996, based on the evidence and the interpretation of the 'alone test'. The Tribunal's decision was certified as a true copy of the reasons for the decision, signed by the relevant officials.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He stated that he has not looked for work since leaving the Council because, in his opinion, he is not mentally fit for employment.medical evidencedr d. beard Dr D. Beard, General Surgeon with vast experience, saw the applicant several times between 1985 and 1994. He prepared eight reports in relation to the applicant (T3/21-25 and T3/29-44). In his report dated 12 May 1987 (T3/41) he referred to his previous reports and concluded:"IN SUMMARY – this man makes complaints which cannot be substantiated by physical examination. He is fit for his previous duties. There is no permanent disability. His presentation is inconsistent." On 29 June 1994 he prepared two reports (T3/21-25 and T3/29-33) in which he canvassed many previous medical opinions and assessments by various doctors and a clinical assessment dated 20 June 1994, concluding the second report (inter alia at p33):"…Throughout the reports there are marked discrepancies about the original injury, the presentation, the course of events from 1984 to 1987 when he had a settlement of his case and then eventually in 1988 when the first operation was performed. This was done in the absence of significant clinical and radiological findings in the hope that it might relieve his complaints which, in fact, became worse.There is nothing in any of these reports to change my opinion in any way that the incident of March 1984 would have done anything more than cause some soft tissue strain of the lower back from which I would have expected him to have recovered within a few weeks at the most.He had a very irregular work record prior to going to the Council and he said himself that he did not want the job but thought that it might lead to some security in a pure driving position.As a result of perusing very carefully all these reports, evidence of disability arising from the March 1984 incident and from the time that I first saw him, he was fit for his previous duties.…" In oral evidence in support of his reports, he told the Tribunal that the applicant's back was such that he was suitable for both heavy and light duties of a driver. His understanding of a Council driver position was that it involved both driving and some road gang work, including shovelling and tailgate moving work. He told the Tribunal that surgery was unnecessary in this case and happened ostensibly because of the applicant's insistence. He criticised the discograms performed on the applicant and noted that the epidural block and psychiatric history of the applicant indicated that surgery was very questionable. He disagreed with Dr R. Fraser's assessment dated 6 January 1986 (T8/225) and stated that an annulus tear of the disc would not in itself cause incapacity or disability.dr m. atchison Dr M. Atchison, Psychiatrist, has been the applicant's treating psychiatrist since early 1996. The Tribunal notes that Dr Atchison has a long association with the Repatriation Hospital and that approximately one half of her practice involves treating Vietnam Veterans.

Decision

Reasons for decision

The Tribunal notes that it has not canvassed the other jobs, although such consideration is open to it. It has not done so for the reasons that it is reasonably satisfied, having considered the driving job, and due to the lack of available evidence as to those other jobs. The Tribunal would require more evidence than that provided by the applicant in order to be able to reach a standard of reasonable satisfaction in respect of those other jobs. decision For the reasons given and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review, and in substitution therefor, decides that the applicant is entitled to special rate as from 21 March 1996.I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)Signed: ..................................................................................... Personal AssistantDate/s of Hearing 13-15 March 2000 Date of Decision 26 April 2000Counsel for the Applicant Mr G. Pickhaver Solicitor for the Applicant Mr G. Hemsley Counsel for the Respondent Ms S. Maharaj Solicitor for the Respondent AGS

Ratio Decidendi

Legal Principle Established

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