Potterat and Repatriation Commission (Veterans' entitlements) - [2018] AATA 3262

Potterat and Repatriation Commission (Veterans' entitlements) [2018] AATA 3262 (5 September 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/0771
Re:Guy Potterat
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:5 September 2018
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that Mr Potterat is entitled to the payment of pension at the special rate with a date of effect of 9 August 2016.
..[SGD]......................................................................
Senior Member D. J. Morris
Catchwords
VETERANS’ ENTITLEMENTS – special rate pension – disabling condition – whether by reason of incapacity resulting from war-caused disabilities – whether veteran incapable of undertaking remunerative work for more than 8 hours per week – whether non-war caused preventative factors – ‘alone test’ – Tribunal satisfied that criteria are met - decision set aside and new decision substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth), ss 19, 22, 23, 24, 25, 120, 177
Cases
Fox v Repatriation Commission [1997] FCA 176
Repatriation Commission v Smith [1987] FCA 327
REASONS FOR DECISION
Senior Member D. J. Morris
5 September 2018
Background

Mr Guy Potterat, the Applicant in this matter, seeks to review the decision of the delegate of the Repatriation Commission (the Respondent) of 3 February 2016, which refused to increase his disability pension beyond 100 per cent of the general rate under section 22 of the Veterans’ Entitlement Act 1986 (the Act). That decision was affirmed by the Veterans’ Review Board (the Board) on 13 September 2016. Mr Potterat contends that he satisfies all the criteria set out in section 24 of the Act and as a consequence his pension should be increased to the special rate.
On 17 December 2012 Mr Potterat made a claim for post-traumatic stress disorder (PTSD), adjustment disorder and depressed mood. On 6 March 2013 a delegate of the Respondent decided that the conditions of adjustment disorder and depressed mood were not related to service but accepted Mr Potterat’s application for increased disability pension. The pension was increased to 50 per cent of the general rate, with effect from 17 December 2012. On 20 November 2013 Mr Potterat made an application for review of that decision to the Board. On 24 September 2015 the Board amended the diagnoses and accepted alcohol use disorder in remission and PTSD as related to service. The Board referred the matter to the Repatriation Commission for assessment of the disability pension (T17, p 99). On 3 February 2016 a delegate of the Respondent increased the rate of Mr Potterat’s disability pension to 100 per cent of the general rate, with effect from 26 May 2013 (T17, p 99). As mentioned above, on 15 February 2016 Mr Potterat applied for a review by the Board of this decision, and the Board affirmed it. That is the matter before the Tribunal.
The hearing was held from 6 to 7 June 2018. Mr Potterat was represented by Ms Fiona Spencer, of…

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: [2018] AATA 3262
Decision Date: 5 September 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Potterat against a decision of the Repatriation Commission regarding his entitlement to a special rate pension under the *Veterans' Entitlements Act 1986* (Cth). The core of the dispute revolved around whether Mr Potterat's incapacity to undertake remunerative work for more than eight hours per week was solely attributable to war-caused disabilities. Mr Potterat contended that his mental health issues, stemming from his military service, were the sole reason for his inability to work, while the Commission appeared to consider that non-war-caused physical factors may have also contributed. The Administrative Appeals Tribunal (AAT) was required to determine if the criteria for a special rate pension were met.

The legal issues before the AAT included whether Mr Potterat was totally and permanently incapacitated by his war-caused conditions, and crucially, whether these conditions *alone* prevented him from undertaking remunerative work for periods aggregating more than eight hours per week. This required the Tribunal to assess the extent to which his post-traumatic stress disorder (PTSD) and any physical ailments contributed to his work incapacity, and to apply the "alone test" as stipulated by the Act. The Tribunal also had to consider the permanence of his condition and the appropriate date from which any increased pension entitlement should commence.

The Tribunal's reasoning focused on the medical evidence presented, particularly the reports from psychiatrists. It noted Dr Ewer's 2014 diagnosis of chronic PTSD, his assessment that Mr Potterat was unfit to work more than eight hours per week, and his recommendation for a conservative approach to rating the condition as "temporary" pending treatment. The Tribunal found that this assessment was confirmed by later opinions, such as that of Dr Strauss in May 2017, and was satisfied that Mr Potterat's condition was permanent. The Tribunal accepted submissions that Mr Potterat's career was cut short by his PTSD and that there was no evidence he ceased work for reasons other than this war-caused condition.

Consequently, the Tribunal set aside the previous decision and substituted a new decision finding Mr Potterat entitled to payment of pension at the special rate. This entitlement was backdated to 9 August 2016, being six months prior to the date Mr Potterat lodged his application with the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In 2014 Mr Potterat moved from Adelaide to Melbourne and transferred to the Melbourne University Regiment, still as a military instructor. The hours he worked in Adelaide were about 134 days of a possible 250 days per year. He reduced those hours in Melbourne to about 40 days per year. In Melbourne, most of his duties were attending and managing the delivery of courses. The Applicant’s evidence The Tribunal had before it two written statements from Mr Potterat. The first was dated 6 March 2017 (Exhibit A2) and the second was dated 14 September 2017 (Exhibit A3). In Exhibit A2, Mr Potterat stated that he had not undertaken any paid work since he was discharged from the Army Reserve on 15 May 2016. In terms of moving to the Melbourne University Regiment, Mr Potterat stated:Unfortunately, I soon discovered that I was not coping with the reduced hours of work following my move to Melbourne and I obtained a discharge from the Army Reserve on 15 May 2016 as a consequence. The sole reason for ceasing work in May 2016 was the mental health issues and I disagree with the findings of the Veterans’ Review Board that physical problems (such as the low back, right knee or any gastrointestinal problems) played any part in my decisions to obtain discharge from the Regular Army, seek transfer from Adelaide to Melbourne in the Army Reserve and then to finally cease duties completely in May 2016. He gave evidence that when in the Regular Army he undertook an annual physical test which involved push ups, sit ups, a run or (if the participant cannot run) a 5 kilometre walk. Mr Potterat said he always chose to undertake the run. Mr Potterat said he had a knee operation in 1994, which was not related to his war service. Mr Potterat gave evidence that he rose up through the ranks to be a senior Non-Commissioned Officer and held the rank of Sergeant for 10 years. Prior to his discharge from the Regular Army, Mr Potterat said he undertook a resettlement course and uploaded his curriculum vitae to some job recruitment websites. He said he was offered a job in Papua New Guinea for a mining company, to revise their occupational health and safety (OH&S) manuals. He also said he was offered a position in Port Hedland as an OH&S manager, but a condition of that offer was that he would have to travel there at his own expense. So he did not take up the offer. Mr Potterat said that he was successful in obtaining a job with a training organisation in China. It was an intensive job, working seven days a week with two paid trips home to Australia a year. Mr Potterat said that he went to China to take up the job but only lasted two weeks because he found he could not handle the stress. He also observed that he was followed by persons whom he suspected were government agents, which he found additionally stressful. He then returned to Adelaide and took up the position with the Adelaide University Regiment. Mr Potterat said he continued to look for other work and contacted a local municipal council seeking general labouring work, which he selected because he thought it would keep him out of an office environment and would not require frequent contact with other people. He also applied for night stacking jobs with two major supermarket chains. Mr Potterat told the Tribunal he did not receive any invitations to interviews or job offers in relation to these applications.

Decision

Reasons for decision

The Tribunal accepts this submission, as section 177(b)(i) sets out that if a review relates to a claim in accordance with section 14 (as this claim does), the Tribunal may approve payment of a pension at an increased rate from a date not more than 6 months before the date on which the application was made. Given that Mr Potterat’s application was lodged with the Tribunal on 9 February 2017, that date cannot be earlier than 9 August 2016.DECISIONThe Tribunal sets aside the decision under review and substitutes a decision that Mr Potterat is entitled to the payment of pension at the special rate with a date of effect of 9 August 2016.

Ratio Decidendi

Legal Principle Established

Dr Grant said that he did not think that Mr Potterat could do work which required a lot of new learning. Mr Potterat had significant issues but not, in his view, no work capacity. He said that Mr Potterat was different and delicate compared to a person without his symptomology, and agreed that there was a risk of unpredictability in the course of the condition. Dr Grant said it was his view that Mr Potterat could not work an eight-hour day but could work in 3 or 4 hour lumps.Consideration To satisfy section 24(1)(b) of the Act, Mr Potterat must be totally and permanently incapacitated by his war-caused conditions, which alone prevent him from continuing to undertake remunerative work for periods aggregating more than eight hours per week. Ms Spencer submitted that Mr Potterat’s career in the Army was cut short by his PTSD condition. She said that he was up for promotion and there is no evidence he ceased for any reason other than the PTSD. Ms Spencer pointed to Mr Boatwright’s evidence about Mr Potterat’s physical fitness and the high scores in the annual basic fitness tests that he undertook. Ms Spencer said that the only evidence among all the medical reports that Mr Potterat’s physical conditions were affecting him was in Dr Horsley’s report. She submitted that Dr Horsley had, in her report summary, misunderstood the physical tasks Mr Potterat had been undertaking as a military instructor. Ms Spencer drew the Tribunal’s attention to the medical report of Dr Marty Ewer, psychiatrist, dated 2 December 2014 (T11, p 42). Dr Ewer concluded:In my clinical opinion, based upon a reasonable degree of medical probability Mr Potterat is suffering from a chronic post-traumatic stress disorder. He was exposed to a number of traumatic events during his time in Kosovo and Bosnia during his time in the army and these distressed him greatly. He has re-experienced the traumas in the form of flashbacks and intrusive recollections. There is evidence of avoidant symptoms and increased physiological arousal in the form of sleep disturbance and an exaggerated startle reaction.(Emphasis in original.) At T11, p 51, Dr Ewer, after quantifying Mr Potterat’s disability by referring to chapter four of the Guide to the Assessment of Rates of Veteran’s Pensions (GARP), edition 5, concluded that the Applicant was unfit to work 8 hours per week. This equates to an impairment rating of 8. Later in the report (T11, p 52), Dr Ewer wrote:Given that Mr Potterat has yet to receive the benefit of psychiatric treatment I would take a conservative approach and rate his current mental state as “temporary”. Should there be no change with eight to ten months of psychiatric treatment I would consider his psychiatric state to be “permanent.” It would seem to the Tribunal that Dr Ewer’s diagnosis at the end of 2014 and his assessment of work capacity has unfortunately been confirmed by Dr Strauss’s clinical opinion of May 2017, some 29 months later. The Tribunal is satisfied, on the medical evidence, that the condition is permanent.