Quazer and Repatriation Commission (Veterans' entitlements) - [2019] AATA 712

Quazer and Repatriation Commission (Veterans' entitlements) [2019] AATA 712 (17 April 2019)

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2017/2880

VETERANS' APPEALS DIVISION )

Re: Robert Quazer
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL:               Member Mr A. Maryniak, QC
DATE:   23 May 2019
PLACE:                     Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.At page one and paragraphs [92] and [94], the date of effect as 24 November 2014 be deleted and replaced with the date 24 August 2014.

........................[sgd]...........................................
Member
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2880
Re:Robert Quazer

APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:17 April 2019
Place:Melbourne

The Tribunal sets aside part of the decision under review and substitutes a decision that the Applicant’s disability pension ought to be increased to the special rate with effect from
24 November 2014.
..............[sgd]..........................................................
Mr A. Maryniak QC, Member
Catchwords
VETERANS’ AFFAIRS – application for increase to special rate of pension from general rate of pension – Applicant aged under 65 at time of application – Applicant’s general rate of pension assessed at 100 per cent – Applicant’s incapacity from war-caused injuries or diseases renders him incapable of working more than eight hours per week – whether alone test at s 24(1)(c) is satisfied – decision under review set aside and substituted
Legislation
Veterans' Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) ALR 395; (1986) 6 AAR 113
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Peacock v Repatriation Commission [2004] FCA 1449; 40 AAR 143
Repatriation Commission v Alexander (2003) 75 ALD 329
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation v Van Heteren (2003) 37 AAR 533
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272; (2014) 140 ALD 380
Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221
Secondary Materials
Hansard HR Debates Vol 163, 20 October 1988
REASONS FOR DECISION
Mr A. Maryniak QC, Member
17 April 2019
INTRODUCTION

The Applicant seeks review of part of a decision of the Repatriation Commission dated

17 June 2015, affirmed by the Veterans’ Review Board on 3 April 2017. It resulted in a refusal to increase the Applicant’s disability pension beyond 100 per cent of the general rate under s 22 of the Veterans’ Entitlements Act 1986 (the Act).
On 24 November 2014 the Applicant made a claim under s 14 of the Act for pension for lumbar spondylosis, cervical spondylosis, post-traumatic stress disorder (PTSD), depressive disorder and alcohol use disorder in remission. The assessment period commenced on that date. The primary decision maker accepted that 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.

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Details

Case: [2019] AATA 712
Decision Date: 17 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by the Applicant, Robert Charles Woulfe, for an increase in his disability pension to the special rate under section 24 of the *Veterans’ Entitlements Act 1986* (Cth). The Applicant, who was under 65 at the time of his application, was in receipt of a general rate pension assessed at 100 per cent due to accepted war-caused conditions including PTSD, depressive disorder, alcohol use disorder, sensorineural hearing loss, tinnitus, and lumbar spondylosis. The Repatriation Commission was the respondent.

The primary legal issue before the Tribunal was whether the Applicant's incapacity from his war-caused conditions rendered him incapable of undertaking remunerative work for more than eight hours per week, thereby satisfying the "alone test" under section 24(1)(c) of the Act. This required the Tribunal to determine if the Applicant's war-caused psychiatric conditions were the sole factor preventing him from continuing in his previous employment and if this incapacity resulted in a loss of earnings he would not otherwise suffer.

The Tribunal reasoned that the phrase "incapacity of a veteran from war-caused injury or war-caused disease" in section 24(1)(c) refers to the effects of the injury or disease, not the injury or disease itself. Evidence from the Applicant's treating psychiatrist, Dr Tony Balkin, and an occupational physician retained by the Respondent, Dr Robyn Horsley, indicated that the Applicant's psychiatric conditions, particularly PTSD and alcohol use disorder, significantly impacted his ability to work. The Tribunal found that the Applicant's bankruptcy and the foreclosure of his nursery business, which were presented as potential independent preventative factors, were directly linked to the symptoms of his war-caused psychiatric illnesses. Therefore, these circumstances were not considered independent preventative factors.

The Tribunal set aside the decision of the Veterans’ Review Board that affirmed the refusal to increase the Applicant's pension beyond the general rate. In substitution, the Tribunal ordered that the Applicant's disability pension be increased to the special rate, effective from 24 November 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal is to assess whether the Applicant is entitled to an increase of his pension to the special rate, pursuant to s 24 of the Act for the period from 24 November 2014 to the date of this decision.BACKGROUND The Applicant provided the following background which essentially was not disputed by the Respondent. The primary decision maker accepted that the Applicant had:[2](a)PTSD;(b)depressive disorder;(c)alcohol use disorder; and(d)previously war-caused disorders of:(i)sensorineural hearing loss;(ii)tinnitus; and(iii)lumbar spondylosis.[2] Veterans’ Review Board Decision, T193. These were accepted as war-caused conditions at 100 per cent of the general rate. The Applicant’s conditions that have not been accepted are:(a)cervical spondylosis;(b)right and left hernias;(c)prostate disease; and(d)osteoarthritis of the hips. The Applicant was born Robert Charles Woulfe on 16 April 1953. He enlisted in the Royal Australian Navy on 30 May 1970 and was discharged on 29 June 1978 at the rank of Leading Seaman.[3] The Applicant completed schooling to year 11 and has no academic qualifications.[3] Navy Extract of Service, T65.MATERIAL BEFORE THE TRIBUNAL In addition to the Applicant, the following witnesses gave oral evidence at the hearing, and were cross-examined and questioned by the Tribunal:(a)Britta Freymann (Applicant’s partner);(b)Bruno de Martin (Applicant’s former employer);(c)Leonie Ivory (former employee of the Applicant); and(d)Dr Robyn Horsley (occupational physician retained by the Respondent).Documentary evidence was also accepted from all the above witnesses (save for Bruno de Martin) and from Dr Sonja Uecker (the Applicant’s treating general practitioner) and Dr Tony Balkin (the Applicant’s treating psychiatrist) together with other documentary evidence including the T documents (exhibits A1 to A7 and R1 to R7).THE LAW In Repatriation Commission v Alexander (2003) 75 ALD 329 (Alexander) Spender J (at [9]-[10]) set out a summary of the legislative scheme for veterans’ pensions as follows:“[9]The regime for the payment of pensions to veterans provided for by the Act is as follows:· the Commonwealth is liable to pay a pension where a veteran has become incapacitated from war-caused injury or war-caused disease (s 13);· a veteran may make a claim for a pension (s 14);· a veteran who is in receipt of a pension may make an application for an increase in the rate of pension (s 15); · the Repatriation Commission is required to consider and determine the claim or application of a veteran (s 18); · the Repatriation Commission is required to consider the rate or rates at which a pension would have been payable during the assessment period, and also the rate at which the pension is payable (s 19(5C)); · The assessment period commences on the day on which a claim or application is received, and ends on the day when the claim or application is determined (s 19(9)).    [10] A pension under the Act may be paid at the general rate (s 22), the intermediate rate (s 23), or the special rate (s 24).”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of the Tribunal’s findings above it is not necessary for the Tribunal to analyse and rule upon this alternate issue.DECISION On the evidence in this matter, on balance, the Applicant’s disability pension ought to be increased to the special rate with effect from 24 November 2014 having regard to the operation of ss 14, 19(6), 20 and 177 of the Act. Accordingly, the Tribunal sets aside that part of the decision of the Veterans’ Review Board of 3 April 2017 affirming that part of the decision of a delegate of the Respondent which refused to increase the Applicant’s disability pension beyond 100 per cent of the general rate under s 22 of the Act, such part to also be set aside. In substitution, the Tribunal orders that the Applicant’s disability pension be increased to the special rate with effect from 24 November 2014.

Ratio Decidendi

Legal Principle Established

A reference to the incapacity of a veteran from a war-caused injury or a war-caused disease, in s 24(1)(c), refers to the effects of that injury or disease, not the injury or disease itself.[13]CONSIDERATION[13] Section 5D(2) of the Act.Psychiatric injury The Applicant submits that the Flentjar questions should be answered as follows:“(1) Nursery man, and catering/kitchen hand.(2)Yes. The Applicant by reason of his war caused psychiatric injury is prevented from continuing to undertake that work.(3)Yes. The Applicant's psychiatric injury was the only factor preventing the veteran from continuing to undertake that work.(4)Yes. The Applicant is by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages and earnings that he would not be suffering if he were free of that incapacity.” Dr Tony Balkin, the Applicant's treating psychiatrist, provided a report of 16 February 2015. Dr Balkin found that the Applicant suffered from PTSD and alcohol abuse disorder. Dr Balkin's opinion was that the symptoms were so bad as to stop the Applicant from engaging in remunerative work.[14] His symptoms were, anxiety, depression, irritability, low frustration tolerance, sensitivity to stress, concentration, impairment, low interest, detachment and difficulties interacting with other people.[15] Dr Duke's report confirms that diagnosis. Dr Duke considered that the Applicant had no capacity for work for 8 or 20 hours per week.[16][14] Report of Dr Balkin dated 16 February 2015, T152.[15] Report of Dr Balkin dated 16 February 2015, T152.[16] R3, Report of Dr Duke dated 27 December 2017, 8. Dr Horsley found that the primary disability impacting upon the Applicant's ability to work was his psychiatric status,[17] which was diagnosed in August 2014, under the care of Dr Balkin, the Applicant’s psychiatrist.[17] R2, Report of Dr Horsley dated 11 December 2017, 13.There were no independent preventative factors Evidence was given in the proceeding about the Applicant’s personal bankruptcy and the foreclosure of the nursery business. The Applicant submitted that the circumstances leading directly to his lack of employment by the closure of the nursery directly arose out of the symptoms which he was suffering for his war-caused psychiatric illnesses, and consequently that this was not an independent preventative factor within the meaning of s 24(1)(c) of the Act. The Applicant stated that he was always able to cope with the physical demands of the nursery.[18][18] A1, Statement of Robert Quazer dated 8 May 2017, 3. There was evidence about three different sets of legal proceedings in the lead-up to the foreclosure of the nursery business. The Applicant described how he and his partner, Ms Britta Freymann, witnessed a car accident involving one vehicle. Ms Freymann confirmed the account saying that an older man who looked unwell drove into some side railing. They got out to help. They gave the driver Cutler their phone number. In oral evidence, the Applicant explained he was phoned by RACQ, Cutler’s insurance company, in relation to a subsequent claim being made against him by Cutler. The Applicant yelled at the caller. The Applicant had no further involvement in the proceeding.