Ring and Repatriation Commission - [2001] AATA 981

DECISION AND REASONS FOR DECISION [2001] AATA 981

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1436
VETERANS'     APPEALS       DIVISION
  Re:         RONALD DAVID RING
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             30 November 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 May 1999.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - assessment of rate of pension - Post Traumatic Stress Disorder and other accepted conditions - whether war-caused incapacity was substantial cause of inability to undertake remunerative work - whether special rate applicable
Veterans' Entitlements Act 1986 ss9, 24
Byrne v Repatriation Commission [2001] FCA 1134
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Sheehy (1995) 39 ALD 286
Sheehy v Repatriation Commission (1996) 41 ALD 205

REASONS FOR DECISION

30 November 2001 G.D. Friedman, Member

This is an application by Ronald David Ring (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 9 October 2000 which affirmed a decision of a delegate of the respondent dated 20 October 1999 to assess pension at 80% of the general rate.
At the hearing of this matter on 18 October 2001 the applicant was represented by Mr D. De Marchi, Solicitor, and the respondent was represented by Mr K. Rudge, Advocate for the Department of Veterans' Affairs.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and two lodged by the respondent (Exhibits R1 and R2). The Tribunal heard oral evidence from the applicant and Dr W. Stone.
BACKGROUND
The applicant was born on 10 June 1945. He joined Patrick Stevedores (Patrick's) on 12 May 1965 where he worked as a crane driver and forklift driver. On 20 April 1966 he joined the Australian Army as a conscript and served until 29 May 1968. His service included a tour of duty in Vietnam and is operational service as defined in s9 of the Veterans' Entitlements Act 1986 (the Act). Following his discharge, the applicant returned to Patrick's until 14 September 1998, when he accepted a voluntary redundancy package. He registered with Centrelink and looked for work. He was assessed for Disability Support Pension on the basis of suffering from spondylosis, lumbosacral pain, left-sided lower back pain and groin pain, Paget's disease with right hip pain, and sensorineural hearing loss.
On 26 October 1998 a report from a treating doctor on behalf of Centrelink listed the major conditions suffered by the applicant as spondylosis, Paget's disease and hearing loss. The doctor rated the conditions as long-term and assessed the applicant as unable to lift, carry and move objects. On 8 December 1998 Health Services Australia assessed him as medically fit for non-heavy work.
On 19 May 1999 a further assessment was carried out and the applicant was considered to be…

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 Ring and Repatriation Commission

Details

AGLC: Ring and Repatriation Commission [2001] AATA 981
Case: [2001] AATA 981
Decision Date: 30 November 2001

CaseChat Overview and Summary

The case involved an applicant who had served in the Australian Army and subsequently sought a pension under the Veterans' Entitlements Act 1986. The applicant claimed he was entitled to a special rate pension due to his incapacity to work caused by conditions resulting from his military service, including post-traumatic stress disorder (PTSD), hearing loss, and other medical issues. The Repatriation Commission had initially assessed his pension at 80% of the general rate. The applicant sought review of this decision, arguing that his conditions warranted a higher pension rate, specifically the special rate.

The primary legal issue before the court was whether the applicant's incapacity to undertake remunerative work was solely due to his war-caused injury or disease, thereby qualifying him for the special rate pension under section 24(1)(c) and s24(2)(b) of the Veterans' Entitlements Act 1986. The court needed to determine if the applicant's conditions, particularly PTSD and alcohol abuse, were the substantial causes of his inability to work, and whether he had been genuinely seeking employment.

The Tribunal found that the applicant's incapacity was indeed due to war-caused injury or disease, as his disabilities, particularly PTSD and alcohol abuse, significantly interfered with his capacity for work. The Tribunal concluded that the applicant's conditions prevented him from continuing to undertake remunerative work and that his incapacity was the substantial cause of his inability to obtain such work. Consequently, the Tribunal ruled that the applicant satisfied the eligibility requirements for the special rate pension. The Tribunal set aside the original decision and substituted a decision that the applicant was entitled to pension at the special rate from 16 May 1999.

The final orders of the Tribunal were to affirm the applicant's entitlement to the special rate pension, effective from 16 May 1999. This decision was made on 30 November 2001, following a hearing on 18 October 2001. The applicant was represented by Mr D. De Marchi of De Marchi & Associates, and the respondent by Mr K. Rudge of the Department of Veterans' Affairs.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and two lodged by the respondent (Exhibits R1 and R2). The Tribunal heard oral evidence from the applicant and Dr W. Stone. BACKGROUND The applicant was born on 10 June 1945. He joined Patrick Stevedores (Patrick's) on 12 May 1965 where he worked as a crane driver and forklift driver. On 20 April 1966 he joined the Australian Army as a conscript and served until 29 May 1968. His service included a tour of duty in Vietnam and is operational service as defined in s9 of the Veterans' Entitlements Act 1986 (the Act). Following his discharge, the applicant returned to Patrick's until 14 September 1998, when he accepted a voluntary redundancy package. He registered with Centrelink and looked for work. He was assessed for Disability Support Pension on the basis of suffering from spondylosis, lumbosacral pain, left-sided lower back pain and groin pain, Paget's disease with right hip pain, and sensorineural hearing loss. On 26 October 1998 a report from a treating doctor on behalf of Centrelink listed the major conditions suffered by the applicant as spondylosis, Paget's disease and hearing loss. The doctor rated the conditions as long-term and assessed the applicant as unable to lift, carry and move objects. On 8 December 1998 Health Services Australia assessed him as medically fit for non-heavy work. On 19 May 1999 a further assessment was carried out and the applicant was considered to be unlikely to be able to return to employment. On 16 August 1999 the applicant made a claim for Invalidity Service Pension based on pain in the lower back and hips, Paget's disease, hearing loss and tinnitus and post-traumatic stress disorder (PTSD). On 20 October 1999 the respondent accepted that the following conditions were war-caused: chronic solar skin damage, right ear mixed deafness with tinnitus, left ear sensorineural deafness, PTSD and psycho-active substance abuse or dependence involving alcohol. The respondent assessed pension at 80% of the general rate to operate from 16 May 1999. On 19 May 1999 a further medical report on behalf of Centrelink stated that PTSD was an additional condition suffered by the applicant. The doctor stated that the applicant was not likely to be fit for any work in the next two years and that the applicant's medical conditions prevented him from undertaking vocational rehabilitation or training. On 25 October 1999 the applicant sought review by the VRB. On 9 October 2000 the VRB affirmed the decision. On 29 November 2000 the applicant sought review by the Tribunal and claimed an increase in pension to 100% of the general rate and entitlement to pension at the special rate. EVIDENCE The applicant told the Tribunal that in Vietnam he was present during active combat operations, and on one occasion he witnessed a number of casualties among members of his platoon. He said that he suffered from stress and numerous conditions arising from his service in the Army, and he commenced drinking alcohol to excess. The applicant stated that prior to leaving Patrick's he was able to cope with the work on the waterfront only with the assistance of his colleagues, who were aware of his medical and other difficulties. He said that he has attempted to obtain employment but has been unsuccessful, largely because of PTSD and a loss of confidence. The applicant stated that PTSD was diagnosed in 1999.

Evidence

Evidence Before The Court

On 25 October 1999 the applicant sought review by the VRB. On 9 October 2000 the VRB affirmed the decision. On 29 November 2000 the applicant sought review by the Tribunal and claimed an increase in pension to 100% of the general rate and entitlement to pension at the special rate. EVIDENCE The applicant told the Tribunal that in Vietnam he was present during active combat operations, and on one occasion he witnessed a number of casualties among members of his platoon. He said that he suffered from stress and numerous conditions arising from his service in the Army, and he commenced drinking alcohol to excess. The applicant stated that prior to leaving Patrick's he was able to cope with the work on the waterfront only with the assistance of his colleagues, who were aware of his medical and other difficulties. He said that he has attempted to obtain employment but has been unsuccessful, largely because of PTSD and a loss of confidence. The applicant stated that PTSD was diagnosed in 1999. In a written report dated 2 July 2001 Dr Barrie Kenny, Consultant Psychiatrist, concluded that because of PTSD and substance abuse the applicant was unfit to undertake remunerative work for more than 8 hours per week, and was unfit for any effective employment. Dr William Stone, Rehabilitation and Occupational Physician, gave evidence to the Tribunal. He referred to his written report dated 29 June 2000 in which he stated that the applicant's disabilities, particularly PTSD and alcohol abuse, interfered significantly with his capacity for work, although the other medical conditions would have less impact. He said that the applicant would not have been able to retain employment during the 1990s in an environment other than the waterfront, where his colleagues often stood in for the applicant or otherwise enabled him to complete his duties. Dr Stone concluded that the applicant had a very limited capacity for work, and would not be able to work for more than 8 hours per week in the open labour marketplace, and the limitation is likely to be permanent. Dr Stone told the Tribunal that the incapacity for work was almost entirely due to the accepted disabilities, particularly PTSD. Other factors, although relatively insignificant, were his age (54 years at the time) and the condition calcaneal spurs. In his written report dated 5 January 2001 Dr Stone stated that the applicant had attended on 5 January 2001 for further assessment. He stated that PTSD and alcohol abuse were much the same as when assessed previously and would continue to have a substantial impact on the applicant's ability to work. However Dr Stone stated in his report that alcohol abuse needs to be added to PTSD in terms of having significant impact on his workability. He also said that low back pain is also a factor that needs to be added in consideration of his ability to work. In estimating the relative importance of the particular factors in relation to his ability to work, he listed the following:PTSD 60 % Lower back pain 15%Alcohol abuse 10%Calcaneal spurs 5%Other (e.g. age) 10%

Decision

Reasons for decision

Therefore the Tribunal finds that the applicant is, by reason of incapacity from war-caused injury or disease, alone, prevented from continuing to undertake remunerative work that the applicant was undertaking and is suffering loss of wages or earnings that he would not be suffering if he were free of the incapacity. The Tribunal finds that the applicant satisfies s24(1)(c) of the Act. For similar reasons the Tribunal finds that the applicant has been genuinely seeking to engage in remunerative work and that the incapacity is the substantial cause of his inability to obtain remunerative work in which to engage. The Tribunal finds that the applicant satisfies s24(2)(b) of the Act and therefore meets the requirements of s24 for eligibility for special rate of pension.DECISION The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 16 May 1999. I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of G.D.Friedman, Member(sgd) Catherine Thomas ClerkDate of hearing: 18 October 2001 Date of decision: 30 November 2001Solicitor for applicant: Mr D. De Marchi, De Marchi & AssociatesSolicitor for respondent: Mr K. Rudge, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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