Robert Lansom and Repatriation Commission - [2013] AATA 813

[2013] AATA 813

Division VETERANS' APPEALS DIVISION

File Number

2012/5595

Re

Robert Lansom

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Dr M Denovan, Member

Date 15 November 2013

Place Brisbane
The decision under review is affirmed.
....................[Sgd]....................................................
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 58 ALD 394
REASONS FOR DECISION
Dr M Denovan, Member
15 November 2013

Mr Robert Lansom is the applicant in these proceedings. He served in the Australian Army for two years from July 1969 to July 1971. Mr Lansom has a number of medical conditions that have been accepted as service caused; ischaemic heart disease, thoracic spondylosis, anxiety disorder, hypertension, erectile dysfunction, lumbar spondylosis, sensorineural hearing loss and tinnitus. He also suffers from gout, scoliosis and sleep apnoea, conditions, which have not been determined as service related.
Mr Lansom has worked in the food industry since the early 1980s. He has owned a number of corner stores and take-away shops. In 1998 the applicant and his wife went into a partnership with another couple. They bought a take away chicken shop located in Ballina. Twelve months later a third couple joined the partnership and they bought a second chicken take-away shop located in Byron Bay. In 2001 Mr Lansom suffered a heart attack. Mr Lansom resumed his normal duties within six months. The second business was sold, however there was no change to the partners, and the three couples continued to operate the busier more successful shop located in Ballina, until 2008 when it was sold.
On 13 September 2011 a delegate of the Repatriation Commission increased

Mr Lansom’s pension to 100% of the general rate from 18 October 2009. The Veterans’ Review Board affirmed that decision on 24 October 2012. Mr Lansom disagrees with that decision, as he believes he meets all the requirements for pension above the general rate that is at the special rate of pension. He claims to be incapable of working more than eight hours per week due to incapacity from accepted disabilities alone, and that for the same reason, he had to sell the chicken shop.
The requirements which must be satisfied before the special rate of pension can be paid are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, with s 24(1) of the Act dealing with veterans who are under the age of 65. For Mr Lansom, who was under 65 years of age when he lodged his claim, to be eligible for the special rate he must, amongst other things:
(1) have a degree of incapacity due to a war-caused injury or disease, or both, of at…

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 Robert Lansom and Repatriation Commission

Details

AGLC: Robert Lansom and Repatriation Commission [2013] AATA 813
Case: [2013] AATA 813
Decision Date

CaseChat Overview and Summary

The case of Robert Lansom versus the Repatriation Commission involves a dispute over whether Mr Lansom is eligible for a disability pension under the provisions of the Repatriation Act. The court was tasked with determining if Mr Lansom's inability to work is solely due to war-caused injuries or diseases, or if other factors are also contributing to his incapacity. The primary legal issue revolved around the interpretation of section 24(1)(c) of the Act and whether Mr Lansom satisfied its requirements.

The court examined four key questions to ascertain if Mr Lansom met the criteria for a disability pension. Firstly, it determined the relevant work Mr Lansom was undertaking prior to his incapacity. It was established that Mr Lansom had a long history of full-time employment, mostly in the retail and fast food industries, both before and after his military service. Secondly, the court found that Mr Lansom was indeed prevented from continuing his work due to his war-caused injuries or diseases, as confirmed by the evidence from medical specialists. However, the third question, which asked whether the war-caused injuries or diseases were the only factors preventing Mr Lansom from working, was answered in the negative. The court noted that while Mr Lansom's psychological condition and other disabilities impact his work capacity, there are additional factors such as sleep disturbance and sleep apnoea that also contribute to his incapacity.

In conclusion, the court held that Mr Lansom's incapacity to work was not solely due to war-caused injuries or diseases. As a result, the decision affirming Mr Lansom's eligibility for a disability pension was overturned. The court's decision underscores the importance of considering all contributing factors to a veteran's incapacity when determining eligibility for a disability pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not able to decide exactly why Mr Lansom and his wife decided to sell the business. It may be that they too had had enough of the long hours, and inability to have infrequent holidays for more than one week at time. After seven years it would be a factor that would certainly influence many people. I am not reasonably satisfied that incapacity due to accepted disabilities alone was the reason Mr Lansom ceased working.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I must decide whether Mr Lansom satisfied the requirements of s 24(1)(c) of the Act.CONSIDERATION I will approach my consideration of s 24(1)(c) of the Act, having regard to the four questions propounded in Flentjar v Repatriation Commission (1997) 48 ALD 1, by Branson J at 2.1. What was the relevant work that Mr Lansom was undertaking within the meaning of s 24(1)(c) of the Act? After completion of his military service, Mr Lansom returned to the job he had had prior to enlisting, at Pine Board as a forklift driver. He remained there in a full-time position for three years. He was then employed full-time as a mechanic for nine years. He later spent four years as a full-time employed driver, for Tip-Top. For the majority of the 30 years prior to his retirement Mr Lansom was self-employed, in a full-time capacity in the retail and fast food industries. For the first 20 years, he worked alongside his wife, for the final 10 years he and his wife continued to work full-time in the same industry, joined in partnership with two to four other individuals. 2. Is Mr Lansom, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? Yes, according to the evidence of two specialists, Dr Greg Apel and Dr Nicholas Burke. Dr Apel and Dr Burke have provided reports dated 6 August 2013[1] and 13 May 2013,[2] respectively, and oral evidence in the hearing for this matter. Psychiatrist Dr Apel, examined Mr Lansom for two hours, and took, amongst other things, a detailed work history. He opines that due to his psychological condition of anxiety disorder, Mr Lansom is unable to work.[3] Dr Burke, Consultant Occupational Physician, opined that due to his various work related disabilities Mr Lansom would be prevented from working in a retail capacity for more than eight hours per week.[4] 3. If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing Mr Lansom from continuing to undertake that work?[1] Exhibit 2.[2] Exhibit 3.[3] Exhibit 2, p. 9.[4] Exhibit 3, p. 9. I find, for the reasons given below, the answer to this question is no. Mr Lansom has sleep disturbance and sleep apnoea, both of which impact on his capacity to work, according to Dr Burke. The cause of these conditions has not been identified, however neither of these conditions are accepted disabilities, and there is no evidence which allows me to be reasonably satisfied that either condition is secondary to an accepted condition. Mr Lansom says he has had disturbed sleep since returning from Vietnam. He has great difficulty getting to sleep, and he generally wakes up every night around 3 am or 4 am. In April 2010 Mr Lansom was referred to Respiratory Physician Dr Michael Thompson. [5] Exhibit 1, p. 90.Dr Thompson recorded the history of Mr Lansom as a heavy snorer, he can wake up with a choking sensation if he is sitting in a chair and dozes off, he sputters on occasions during the night, he is unrefreshed in the morning, doses easily when sedentary, has poor concentration and memory, has difficulty driving long distances and, at times, falls asleep at traffic lights. Dr Thompson opined that Mr Lansom has significant obstructive sleep apnoea (“OSA”). He recommended a sleep study.[5]

Division	VETERANS' APPEALS DIVISION
File Number	2012/5595
Re	Robert Lansom
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr M Denovan, Member
Date	15 November 2013
Place	Brisbane