Robert Young v Repatriation Commission - [2006] AATA 448

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS’ APPEALS DIVISION ) N2003/1989 )

Re ROBERT YOUNG

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member
Dr J Campbell - Member
Date24 May 2006
PlaceSydney

Decision
The decision under review is affirmed.

Ms G Ettinger
Senior Member

CATCHWORDS
Veteran – PTSD accepted as war-caused – serious injury to left hand in industrial accident – ganglion right wrist – non return to work post operatively – dismissal – intention to retire to receive war pension expressed to rehabilitation provider - capacity of Veteran for work not impacted by PTSD alone – no loss of earnings due to war-caused disability - pension not payable at the special rate – decision affirmed.
Veterans’ Entitlements Act 1986 ss 19, 23, 24
Jackman v Repatriation Commission [1997] FCA 564
Chambers v Repatriation Commission (1995) 55 ALD 207
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Alexander (2003) 75 ALD 329
Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534
REASONS FOR DECISION

24 May 2006
Ms G Ettinger – Senior Member

  Dr J Campbell - Member

BACKGROUND

1.      Mr Robert Young is a veteran aged 57, who served in the Australian Army on operational service in Vietnam during 1970/71. He was under 65 years at the date of application, having worked in his last position at Nupress Tools Pty Ltd for 24 years until he was terminated in 2001. Mr Young sustained a very serious accident in 1977 in which he lost most of his left (non dominant) hand, leaving him only with a part of his hand, and a functional thumb. Following the accident, he taught himself to operate a lathe, and continued with that work at Nupress for 24 years.
2.      Mr Young had surgery to his right wrist to remove a ganglion in June 2000, but found that when he attempted to return to work, the setup had changed, welding had changed, and that he was unable to hold the tools. He also expressed fears regarding damage to his one remaining intact hand, and expressed, to his rehabilitation counsellor, his desire to retire, and obtain a service pension.
3.      Mr Young has a number of accepted war-caused disabilities including, relevantly, post traumatic stress disorder (“PTSD”). He is a heavy drinker and in 2002, after leaving Nupress, attended St John of God Hospital as an in-patient for three weeks in relation to his drinking, and what he now recognises as PTSD.
4.      We were satisfied that Mr Young is a witness of truth. However, we were mindful that the matter has come to hearing more than a year after the application was lodged, and that the majority of the medical reports upon which we were asked to rely dated back to 2004. Accordingly we gave the parties the opportunity of having the Applicant re-examined…

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 Young v Repatriation Commission

Details

AGLC: Robert Young v Repatriation Commission [2006] AATA 448
Case: [2006] AATA 448
Decision Date: 24 May 2006

CaseChat Overview and Summary

The matter of Robert Young v Repatriation Commission was heard by the Administrative Appeals Tribunal (AAT). The central dispute was whether the appellant, a veteran diagnosed with post-traumatic stress disorder (PTSD) and other injuries, was entitled to a special rate pension under the Veterans’ Entitlements Act 1986. Mr. Young claimed that his PTSD, accepted as war-caused, in conjunction with his other injuries, precluded him from employment, warranting the special rate pension. The Repatriation Commission dismissed his claim, leading to this appeal.

The tribunal was tasked with determining whether Mr. Young's disabilities, specifically his PTSD and other injuries, rendered him incapable of gainful employment. This involved assessing the extent to which his PTSD and other conditions, including a ganglion on his right wrist and a serious injury to his left hand from an industrial accident, impacted his capacity to work. The tribunal also had to consider whether the expression of Mr. Young's intention to retire to receive his war pension influenced his eligibility for the special rate pension.

The tribunal found that while Mr. Young's PTSD was indeed war-caused, his capacity to work was not entirely impeded by this condition alone. The tribunal emphasised that the capacity to work is not necessarily negated by the presence of a war-caused disability if other factors, such as a genuine intention to retire for pension reasons, come into play. Additionally, Mr. Young did not suffer any loss of earnings attributable to his war-caused disability. The tribunal concluded that the Repatriation Commission's decision to deny the special rate pension was correct as Mr. Young's disabilities did not result in a total incapacity for work.

The tribunal affirmed the Repatriation Commission's decision, holding that Mr. Young was not entitled to the special rate pension under the Veterans’ Entitlements Act 1986. The tribunal's reasoning was grounded in the absence of a total incapacity for work due to war-caused disabilities, despite the presence of PTSD and other injuries. The appeal was thus dismissed, and the original decision was upheld.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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