Roll and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1649

Roll and Repatriation Commission (Veterans' entitlements) [2020] AATA 1649 (9 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/0641
Re:Keith Roll
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:9 June 2020
Place:Brisbane

The decision dated 22 January 2018 is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (Cth).
..................[SGD]......................
Senior Member Katter
Catchwords
VETERANS’ AFFAIRS – special rate – section 24(1)(c) – decision under review varied
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Cavell v Repatriation Commission (1988) 9 AAR 534
John Joseph Flentjar v Repatriation Commission [1997] FCA 1200
Re Smith and Repatriation Commission [2004] AATA 1223
Richmond v Repatriation Commission [2014] FCA 272
REASONS FOR DECISION
Senior Member Katter
9 June 2020
APPLICATION

The Applicant seeks a review of the decision of the Veteran’s Review Board dated

22 January 2018 as to the refusal of the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
BACKGROUND
The Applicant served in the Royal Australian Navy from 6 January 1971 to

5 January 1995.
The Applicant has had the following conditions accepted in accordance with the Act:
07/08/1994 MALARIA
05/05/2003 BILATERAL SENSORINEURAL HEARING LOSS
07/08/1994 MENISCAL LESION OF THE LEFT KNEE
07/08/1994 OTHER DERMATITIS DUE TO SOLAR RADIATION
05/05/2003 BILATERAL TINNITUS
05/05/2003 OSTEOARTHROSIS OF THE RIGHT KNEE
19/11/2015 OSTEOARTHRITIS OF THE LEFT KNEE
01/01/2016 ADJUSTMENT DISORDER WITH DEPRESSED MOOD.
The Applicant has not had the following conditions accepted in accordance with the Act:
21/01/2004 HIATUS HERNIA
25/10/1995 HEADACHES
25/10/1995 FRACTURE OF UNSPECIFIED PART OF THE RIGHT UPPER LEG
21/01/2004 ASTHMA
21/01/2004 MENIERE’S DISEASE
21/01/2004 GASTRO-OESOPHAGEAL REFLUX DISEASE.
Relevantly, on 18 December 2007 the Applicant made a claim for disability pension and/or application for increase in disability pension, stating as to ‘which of the accepted disabilities have become worse since they were last assessed by the Department and in what way’:
I had my left knee operated on when they did an arthroscope they found the inner           knee was … [g]one. The joint was not smooth. The surgeon scalloped out sections       of the … joint so it is now like a golf ball to try and extend the life of the knee.
Since the operation I have severe pain in the knee even with the slightest of         movement my mobility is restricted. I have to take care [and]         require two hands for stairs and standing up from a chair.
My right knee has also been causing considerable pain through normal use. The surgeon is keen to do an arthroscope on it in the new year when he sees my left         knee has ‘settled down’. I am constantly awakened during the right because of      knee pain which is then aggravated when I try to move my legs. Pain is persistent       with both knees at the rest as well as increased pain when moving the limb.
On 1 April 2016 the Applicant made a claim for…

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: [2020] AATA 1649
Decision Date: 9 June 2020

CaseChat Overview and Summary

The applicant sought a review of a decision by the Veterans' Review Board that refused to grant the special rate of pension under section 24 of the *Veterans' Entitlements Act 1986* (Cth). The applicant had served in the Royal Australian Navy and had several accepted conditions, including bilateral sensorineural hearing loss, bilateral tinnitus, and osteoarthritis of both knees, along with an adjustment disorder with depressed mood. The applicant's claim for the special rate was based on the assertion that these accepted disabilities prevented him from continuing remunerative work and resulted in a loss of earnings.

The primary legal issue before the court was whether the applicant met the criteria for the special rate pension under section 24(1)(c) of the Act. This required determining if the applicant was, by reason of incapacity from war-caused injury or disease alone, prevented from continuing remunerative work he was undertaking and consequently suffering a loss of earnings that he would not otherwise be experiencing. The court also considered the impact of the applicant's alcohol use on his ability to undertake remunerative work, as assessed by a medical professional.

The court reasoned that the applicant's accepted disabilities, particularly the chronic pain from his knee conditions, alone prevented him from continuing remunerative work. The medical assessment indicated that while the applicant's alcohol consumption was a significant problem, it was integrated into his life and did not prevent him from working when he was employed. The court found that the applicant's incapacity from his accepted war-caused conditions was the sole reason for his inability to continue remunerative work and the resulting loss of earnings.

Consequently, the court varied the decision of the Veterans' Review Board, ordering that the applicant be granted the special rate pension pursuant to section 24 of the *Veterans' Entitlements Act 1986* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant seeks a review of the decision of the Veteran’s Review Board dated 22 January 2018 as to the refusal of the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). BACKGROUND The Applicant served in the Royal Australian Navy from 6 January 1971 to 5 January 1995. The Applicant has had the following conditions accepted in accordance with the Act: 07/08/1994 MALARIA05/05/2003 BILATERAL SENSORINEURAL HEARING LOSS07/08/1994 MENISCAL LESION OF THE LEFT KNEE07/08/1994 OTHER DERMATITIS DUE TO SOLAR RADIATION05/05/2003 BILATERAL TINNITUS05/05/2003 OSTEOARTHROSIS OF THE RIGHT KNEE19/11/2015 OSTEOARTHRITIS OF THE LEFT KNEE01/01/2016 ADJUSTMENT DISORDER WITH DEPRESSED MOOD. The Applicant has not had the following conditions accepted in accordance with the Act: 21/01/2004 HIATUS HERNIA 25/10/1995 HEADACHES 25/10/1995 FRACTURE OF UNSPECIFIED PART OF THE RIGHT UPPER LEG 21/01/2004 ASTHMA 21/01/2004 MENIERE’S DISEASE 21/01/2004 GASTRO-OESOPHAGEAL REFLUX DISEASE. Relevantly, on 18 December 2007 the Applicant made a claim for disability pension and/or application for increase in disability pension, stating as to ‘which of the accepted disabilities have become worse since they were last assessed by the Department and in what way’: I had my left knee operated on when they did an arthroscope they found the inner knee was … [g]one. The joint was not smooth. The surgeon scalloped out sections of the … joint so it is now like a golf ball to try and extend the life of the knee. Since the operation I have severe pain in the knee even with the slightest of movement my mobility is restricted. I have to take care [and] require two hands for stairs and standing up from a chair. My right knee has also been causing considerable pain through normal use. The surgeon is keen to do an arthroscope on it in the new year when he sees my left knee has ‘settled down’. I am constantly awakened during the right because of knee pain which is then aggravated when I try to move my legs. Pain is persistent with both knees at the rest as well as increased pain when moving the limb. On 1 April 2016 the Applicant made a claim for disability pension and/or application for increase in disability pension. At Part E of that claim as to the details of the new disabilities now claimed as war or defence caused, the Applicant stated: Disability 1 Anxiety Disorder Signs and symptoms Poor concentration Low self esteem Fatigue Feeling of hopelessness. How do you believe your service caused, contributed to, or aggravated this injury? Due to the constant pain that I experience … Disability 2 Depressive Disorder Signs and symptoms Fatigue Irritability Poor sleep. How do you believe your service caused, contributed to, or aggravated this injury? Due to the chronic pain that I experience … Disability 3 Alcohol Use Signs and symptoms Constant desire to use alcohol Use alcohol to recover from its effects. How do you believe your service caused, contributed to, or aggravated this injury? I use alcohol to help me over come [sic] the pain and depression that I experience.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 24 of the Act therefore applies, in that the Applicant is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity[81]. [81] The Act, s24(1)(c).DECISION The decision dated 22 January 2018 is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

Dr Apel stated that, as to the Applicant in 2016, his drinking would be classified as a ‘significant problem’[51]. As to the ability of the Applicant to undertake work, having regard to that level of alcohol consumption, the Doctor stated that it was something the Applicant ‘built his life around and was not an autonomous phenomenon, therefore being something he could fit into his life without it disrupting too much’[52]. That is, that the Applicant had to perform quite highly in a safety-critical role and when he was a non-working person, the drinking increased[53]. When the Applicant was working, the Doctor stated, that the Applicant didn’t have a drinking problem[54]. [51] Transcript, 19 February 2020, P-29, line 34.[52] Transcript, 19 February 2020, P-29, lines 42-47 and P-30, line 1.[53] Transcript, 19 February 2020, P-30, lines 20-22.[54] Transcript, 19 February 2020, P-31, lines 30-33.CONSIDERATION It is not in contention between the parties that the Applicant has eligible defence service for the purposes of the Act[55]. [55] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 2.1. At the hearing, the Applicant further particularised the application as being only a claim for assessment above the general rate[56]. As to the special rate, section 24 of the Act relevantly states:[56] See Transcript, 19 February 2020, P-5, line 40.Special rate of pension1This section applies to a veteran if:(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab) the veteran had not yet turned 65 when the claim or application was made; and(a)either:(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and(d) section 25 does not apply to the veteran.2For the purpose of paragraph (1)(c):(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.…