Randall and Repatriation Commission

[2002] AATA 708

DECISION AND REASONS FOR DECISION [2002] AATA 708

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/193

Veterans' Appeals  DIVISION    )          
           Re      MICHAEL RICHARD RANDALL            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Associate Professor B W Davis AM (Part-time Member)        

Date20 August 2002

PlaceHobart

Decision      The Tribunal affirms the decision under review i.e. Mr Randall is to be paid a disability pension at the Intermediate Rate, with effect from 4 January 2000.           
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' Appeals - disability pension - general rate - intermediate rate - special rate - impairment - lifestyle - remunerative work - reduction in rate - natural justice - jurisdiction - Veterans' Review Board - GARP (Guide to Assessment of Rates of Veterans' Pensions).
Legislation
Veterans' Entitlements Act 1986 – ss19,23,24.24A,120(4),139(3)
Authorities
Re Turner and Repatriation Commission  (1994) 37 ALR 705

REASONS FOR DECISION

20 August 2002      Associate Professor B W Davis AM (Part-time Member)                    

The Application

1. The applicant, Michael Richard Randall, seeks review of a decision made by a delegate of the Repatriation Commission on 1 March 2001 which increased pension to the Intermediate Rate with effect from 4 January 2000, but which was subsequently varied by a decision of the Veterans' Review Board (VRB) on 8 November 2001, whereby the applicant's claim appeal was refused and disability pension was reduced to 100 per cent of the General Rate from a date to be fixed by the Repatriation Commission.
   Standard of Proof

2. The appropriate standard of proof is that set out in s120(4) of the Veterans' Entitlements Act 1986 ("the Act) i.e. the "reasonable satisfaction" standard.
   Background

3. Mr Randall is a former Army Corporal, who carried out office duties and acted as a medical assistant prior to receiving a disability discharge in February 1999.   His final posting was at the Army Medical Centre, Queencliffe, Victoria.   Mr Randall has a number of accepted disabilities, including disc degeneration and recurrent lumbar strain, internal derangement of a knee and an adjustment disorder.   He also has claimed disabilities involving pain in several joints and limbs, which have not been accepted as service related.

4. Mr Randall claims to have noticed a steady increase in the occurrence and severity of pain in both hands from 1994 onwards, also that his right arm has an occasion gone into spasm.    He found it impossible to hold forceps and other surgical tools without getting severe pain in his hands.   It was for these reasons he sought a medical discharge from the Army in February 1999.   He has not worked since.
   Facts and Contentions

5. In a statement of facts and contentions filed by the applicant's counsel on 26 January 2002, it is claimed that the VRB did not have power to amend the Repatriation Commission's assessment of pension at the Intermediate rate; the applicant was denied natural justice or procedural fairness in that he was not warned his pension might be reduced, nor was he given an opportunity to make a submission that his pension should be continued at the Intermediate rate.

6. The applicant also contends that he qualifies for the Special Rate, pursuant to s24 of the Act, having a degree of incapacity of at least 70 per cent and being incapable of remunerative work aggregating more than 8 hours per week. Alternatively, that his incapacity is such as to cause inability to obtain remunerative work.

7. The respondent contends that the Tribunal's primary function is to review the original decision of the Repatriation Commission made on 1 March 2001 and does not have to consider the jurisdiction of the Veterans' Review Board to amend decisions.   The respondent does not agree that the applicant's disabilities are of such a nature as to prevent him undertaking remunerative work.
   Evidence

8. At the Tribunal hearing conducted on 17 July 2002, Mr Randall was represented by Mr R M Webster and the Repatriation Commission by Mr M A Castle.  Mr Randall was not called to give evidence.

9. Counsel for the applicant queried whether there was any power under the Act for the VRB or indeed the Tribunal to reduce pension. While the VRB was entitled to review decisions under s139(3) of the Act, thereby either affirming, varying or setting aside a decision under review, subsection (6) of the s19 of the Act provided that:

   "Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable from the date of the determination shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period."

Mr Webster claimed this meant that once an Intermediate or Special Rate had been determined, it could not be reduced unless it was shown that a false statement or misrepresentation had occurred, or in the case of s23, that the applicant was capable of undertaking work for 20 hours or more per week.

1. Reference was also made to s24A of the Act, in a decision of the Tribunal in Turner and Repatriation Commission (1994) 37 ALR 705, quoting a statement made by the Minister for Veterans' Affairs on 18 November 1987 (H of R Hansard at 2015):

   "… [Section 24A] will ensure that persons who are eligible to receive and are receiving a TPI or Intermediate Rate pension will not ordinarily lose payment of the pension at such a rate in their lifetime.   The only exceptions are where the grant of a pension would not have been made but for a false statement or misrepresentation or, where the veteran's war-caused incapacity improves to the extent that he or she is undertaking, or becomes capable of undertaking, remunerative work for periods greater than specified in existing law."

2. Mr Webster also contended that Mr Randall had been denied natural justice or procedural fairness, in that he was not informed his pension might be reduced, nor was he given any opportunity to make a submission that his pension should be continued at the Intermediate Rate.

3. Mr Webster noted that if Mr Randall succeeded in his claim, then the issue of whether he was entitled to the Special Rate would also arise.

4. Mr Castle, counsel for the respondent, argued that the role of the Tribunal was to consider the decision under review and then determine what rate of pension might be applicable in the light of Mr Randall's accepted disabilities and their resultant impact on his employability.  It was not necessary for the Tribunal to consider whether the Veterans' Review Board had acted appropriately or not.
   Analysis

5. The Tribunal's role is to stand in the shoes of the decision-maker and consider the evidence anew, giving due weight to statutory provisions, guiding principles and all relevant information.   The Tribunal is not required to accept prior determinations.

6. The initial assessment made by a delegate of the Repatriation Commission on 13 September 2000 was that Mr Randall was entitled to a disability pension at 100 per cent of the General Rate, based on an impairment rating of 60 points and a lifestyle rating of 4 points.   The delegate deferred investigation of eligibility for Intermediate or Special Rate, pending a psychological assessment of claimed adjustment disorder.

7. A report on the latter was supplied by Dr Burges-Watson dated 23 October 2000.   Dr Watson noted that Mr Randall had received some treatment from Dr Jennifer Nichols, Health Psychologist, but his personal assessment was that Mr Randall was still suffering from a mild chronic adjustment disorder with variable depressed mood.   He did not think Mr Randall was unemployable or incapacitated by the adjustment disorder, but was probably unemployable on account of his physical condition.

8. Mr Randall was later examined by Dr Tim Stewart, Occupational Physician, his report being dated 8 February 2001.    Dr Stewart noted that Mr Randall had a number of ongoing disabilities, but felt he was not totally unfit for work and that he would be eligible for the Intermediate Rate of disability pension, that is, fit to work from 8 hours to less than 20 hours per week in an administrative capacity.   At his age, then 41 years, it would be difficult to state he was totally incapacitated for any employment within his experience.

9. Having noted these reports a delegate of the Repatriation Commission made a determination on 1 March 2001, that Mr Randall should be paid a disability pension at the Intermediate Rate, with effect from 1 January 2000.   Citing reasons, the delegate stated:

   "… I am reasonably satisfied that your war-caused disabilities permanently prevent you from twenty hours per week or more, but do not prevent you working more than eight hours per week, and that you are suffering from a substantial loss of income as a result.   In making this decision I have taken into account, amongst other evidence, a comprehensive report from Dr Tim Stewart, Consultant Occupational Physician, who has indicated that you would be fit to work more than eight hours per week in an administrative capacity."

10. In reaching its decision of 8 November 2001, the Veterans' Review Board noted that the matter had been heard in absentia, Mr Randall having declined an invitation to appear.   The VRB made a highly detailed assessment of all available medical evidence, concluding that the overall impairment rating would warrant pension at 100 per cent of the General Rate.   This, as a substituted decision, had the effect of reducing the rate of pension to be paid.   The VRB stated it had considerable reservations about the degree of incapacity suffered by the applicant, given variations and discrepancies in medical reports prepared by specialists.

1. The Tribunal has considered all this evidence and notes collective agreement amongst the parties that a disability pension of at least 100 per cent of the General Rate is warranted.   The only question to be resolved is whether an Intermediate or Special Rate is also appropriate.

1. In the current case the applicant is less than 65 years old and his eligibility for pension at the Intermediate Rate rests on whether he meets three specific tests set out in s23 of the Act, namely:

"(a)that the degree of service related incapacity of the veteran is or has been determined to be at least 70 per cent of the general rate;

(b)that the veteran is totally and permanently incapacitated from accepted disabilities which of themselves alone are of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)that the veteran is by reason of incapacity from accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and is thereby suffering a loss of earnings on his own account that he would not otherwise be suffering."

1. The second test is qualified by sub-section 23(2)(a) and (b). A veteran who works, or is capable of working for more than half the time usually worked by persons engaged in the work undertaken by the veteran or who is capable of working more than 20 hours a week cannot satisfy the test.

1. The third test is qualified by sub-section 23(3)(a). A veteran who is incapacitated by war-caused injury or disease to the extent set out in the second test shall not be taken to be suffering a loss of earnings by reason of that incapacity if:

"(i)the veteran has ceased to engage in remunerative work for reasons other than incapacity from that of war-caused injury or disease of both; or

(ii)the veteran is incapacitated or prevented from engaging in remunerative work for some other reason; or

(iii)the veteran has been engaging in the type of work set out in the second test for reasons other than war-caused injury or war-caused disease or both.

1. The Tribunal agrees with the VRB there are some queries about Mr Randall's medical and psychological situation and hence prospects of employment.   He left the Army of his own volition and there is no evidence he has actively sought work since early 1999.    He has an accepted adjustment disorder and a number of other disabilities, principally relating to lumbar and lower limb situations, but it is his upper limb condition which is perhaps the key to employment prospects.   Here the medical evidence is mixed, he has some range of movement which is normal, but claims that since 1994 he has experienced altered sensation and pain in joints as well as a loss of grip and excessive fatigue in both arms within a half hour of work.    Nonetheless, Dr Tim Stewart considered that he would be fit for employment in situations where duties were from 8 to less than 20 hours per week in an administrative capacity.

1. Having weighed all evidence, the Tribunal is of a view that on the balance of probabilities he does meet the criteria specified in s23(c) of the Act and should be granted a disability pension at the Intermediate Rate. The Tribunal is reasonably satisfied that his disabilities prevent him working 20 hours or more per week, but it remains prospectively possible for him to seek employment for 8 hours of more per week. He is suffering some loss of income as a result of this situation.

1. The Tribunal has considered whether a Special Rate of pension should apply, but is not wholly convinced the applicant's incapacity renders him incapable of undertaking work or actively seeking remunerative work.

1. As to the claim Mr Randall was denied natural justice by the VRB, the Tribunal notes that Mr Randall was invited in writing to attend the hearing and make any submission he wished.    He declined that opportunity, so the matter was conducted in absentia.   Mr Randall must have been aware the VRB would consider the matter anew and that he could not predict the outcome.

1. The decision under review is affirmed, i.e. Mr Randall is to be paid a disability pension at the Intermediate Rate, with effect from 4 January 2000.

   I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

   Signed:         .......K L Miller........
     Administrative Assistant

   Date/s of Hearing  17 July 2002
   Date of Decision  20 August 2002
   Counsel for the Applicant        Mr R M Webster
   Solicitor for the Applicant          
   Counsel for the Respondent    Mr M Castle
   Solicitor for the Respondent    Department of Veterans' Affairs