Scafidi and Repatriation Commission - [2001] AATA 76

DECISION AND REASONS FOR DECISION [2001] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1664

GENERAL ADMINISTRATIVE DIVISION )
Re Joseph SCAFIDI

Applicant
And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Dr J D Campbell

Date7 February 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution thereof a finding that the Applicant is entitled to a disability pension at the special rate with date of effect being 4 May 1995.

[Sgd] Dr J D Campbell
Member

CATCHWORDS
Veterans' Entitlements - accepted disabilities - assessment - special rate - issue of "alone" - substantial cover.
Veterans' Entitlements Act 1986
Moorcroft v Repatriation Commission (1999) FCA 862
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Sheehy (1995) 39 ALD 286
Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

February 2001 Dr J D Campbell

Mr Joseph Scafidi ("the Applicant") in this matter seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 4 September 1995 in which the Applicant's claim for an increase in disability pension was refused. The issue was subject to a further review by the Veterans' Review Board, which in its decision dated 9 August 1999 affirmed the decision of the Repatriation Commission.
A hearing was held before the Tribunal on 28 August 2000 at which the Applicant was represented by Mr Hill of Counsel. The Respondent was represented by Mr Godwin, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following material was placed into evidence before the Tribunal:

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14, pp1-54)
Additional "T documents" (pp23A-R)
Applicant's Statement of Facts and Contentions dated 5 June 2000 (Exhibit A1)
Medical Report of Dr Burns dated 10 April 2000 (Exhibit R1)
Veterans' Review Board Hearing – Transcript (Exhibit R2)
Respondent's Statement of Facts and Contentions dated 11 August 2000 (Exhibit R3)

Issues

The relevant issues before the Tribunal are:
(a)whether the Applicant's disabilities have been correctly assessed; and
(b)whether the Applicant is entitled to an earnings related rate of pension, either at the intermediate or special rate.

Legislation

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular ss23, 24, and 120(4).
BACKGROUND
On 6 January 1995 a delegate of the Respondent accepted the following conditions of the Applicant as war caused disabilities:
(a)      post traumatic stress disorder;
(b)      bilateral sensorineural hearing loss;
(c)       bilateral tinnitus; and
(d)      chronic airflow limitation;

With the condition of prostatitis accepted as a war caused disability at some unknown earlier date, the delegate assessed and granted the Applicant a disability pension at 100% of the General Rate with date of effect being 4 July 1994 (T3).

An application for an increase in disability pension was made by the Applicant on 2 May 1995 and reviewed by the Respondent on 21 May 1995 (T5). On 4 September 1995 the Respondent refused…

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 Scafidi and Repatriation Commission

Details

AGLC: Scafidi and Repatriation Commission [2001] AATA 76
Case: [2001] AATA 76
Decision Date: 7 February 2001

CaseChat Overview and Summary

The case of Scafidi and Repatriation Commission involves the Applicant, a Vietnam veteran, challenging a decision by the Repatriation Commission to maintain his disability pension at 100% of the General Rate. The dispute was heard by the Administrative Appeals Tribunal (AAT). The central legal issue was whether the Applicant's disabilities, which include post-traumatic stress disorder (PTSD), bilateral sensorineural hearing loss, bilateral tinnitus, and chronic airflow limitation, warranted a special rate pension under the Veterans' Entitlements Act 1986. The key question was whether the Applicant's disabilities, when considered together, were so severe that they rendered him incapable of performing any substantial gainful employment, thereby justifying the special rate.

The AAT examined the statutory provisions, particularly sections 23, 24, and 120(4) of the Act, and relevant case law, including Moorcroft v Repatriation Commission, Forbes v Repatriation Commission, Repatriation Commission v Sheehy, and Cavell v Repatriation Commission. The court assessed the Applicant's capacity to work, taking into account his medical evidence and personal circumstances. Dr Pohlen's report, which highlighted the severe impact of the Applicant's PTSD and its resultant functional impairments, was crucial in the analysis. The AAT concluded that while the Applicant's conditions were severe, they did not collectively prevent him from undertaking any substantial gainful employment. The evidence did not support a finding that the disabilities rendered him incapable of working in any capacity, despite the difficulties he faced.

Consequently, the Tribunal upheld the Repatriation Commission's decision to maintain the Applicant's disability pension at 100% of the General Rate. The Tribunal found that while the Applicant's conditions were debilitating, they did not meet the threshold for the special rate, which requires a total incapacity for any substantial gainful employment. The decision affirmed the Commission's assessment that the Applicant's disabilities, while serious, did not entirely preclude him from working.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular ss23, 24, and 120(4).BACKGROUND On 6 January 1995 a delegate of the Respondent accepted the following conditions of the Applicant as war caused disabilities:(a) post traumatic stress disorder;(b) bilateral sensorineural hearing loss;(c) bilateral tinnitus; and(d) chronic airflow limitation; An application for an increase in disability pension was made by the Applicant on 2 May 1995 and reviewed by the Respondent on 21 May 1995 (T5). On 4 September 1995 the Respondent refused the application for an increase in disability pension and decided that the disability pension be continued to be paid at 100% of the General Rate (T2). This decision was subject to a review by the Veterans' Review Board ("the VRB") and in a decision dated 9 August 1999 the VRB affirmed the earlier decision (T13).Applicant's evidence The Applicant told the Tribunal that he was born on 6 June 1945 and that prior to his commencement of National Service in 1965 he worked as a sewing machine mechanic for Singer. During his two years of military service the Applicant served as infantryman with 5RAR in South Vietnam for a period close to 13 months. On his discharge from the Army in 1967 the Applicant returned to his employment with Singer in June 1967 but parted company with this employer on grounds of his drinking and absences from work. The Applicant stated that he had a number of similar jobs, but did not stay with one employer for any lengthy period during the period 1968 to 1971. The Applicant stated that he married in 1971 and commenced working as a labourer with Lysaghts in 1972/73 and later as a quality control officer for two particular machines. Two children were born, one in 1971 and one in 1974. The Applicant stated that his wife left in 1978 because of increasing difficulties and that with some time off and his foreman being a mate, he was able to continue working, with his mother and father looking after the children. In 1979/80 he found that he was having difficulty in concentrating at work and that he was experiencing nightmares. In 1980, he left work on the advice of his foreman and went on to a supporting parent's pension.10. The Applicant stated that he stayed on the supporting parent's pension until 1985/86 when, with the children being aged 15 and 12, he felt he had to do something. He applied for a job at Lysaghts, but decided against taking a job there because he did not feel he would be able to cope with the large number of Asians working there. He did however secure employment with MTL at Ingleburn, where he commenced work on a day shift as a leading hand in the reinforcement section and safety officer. After a particular incident involving a concrete mishap, the Applicant stated that following heated words with his boss he was demoted to the position of labourer. Later he was transferred to the afternoon shift and, following a run-in with the leading hand, he was sacked with a week's notice in lieu, having been given an opportunity to apologise, which he did not.11. After his dismissal, he reverted to parenting support payments before he applied for and was granted unemployment benefits, with the need to detail his job search activities every few weeks to Social Security. These involved visiting factories in the Campbelltown/Liverpool area to see if any work was available, visiting the Commonwealth Employment Service, talking to friends and screening the papers, for at this stage he needed the money with his two children being in years 9 and 10.12. On 10 September 1994 the Applicant said he moved from Minto to Morisset to live with his parents as his father had been experiencing a number of strokes from 1992 onwards. As a result his father had diminishing mobility until he died in 1995. The Applicant also indicated that his mother had been admitted to a nursing home in January 2000.13. The Applicant stated that in 1994 he met an old school friend, who was also a Vietnam Veteran and he was referred to the Vietnam Veterans' Association for advice and assistance. In 1994 the Applicant stated that he was granted a disability support pension and in 1995 a service pension, because the Department of Veterans' Affairs told him he was permanently unemployable. The Applicant also stated that when he moved to Morisset he looked around Morisset, Cardiff and Wyong for work but there was not much available, and if offered a job he probably would have taken it. The Applicant maintained that he is still looking for work as a labourer or in bar work, because he still feels he has to do something.Medical evidence14. In late 1994 the Applicant's general practitioner stated that the veteran suffered from post traumatic stress disorder and restricted respiratory function (T7, P23). On 29 November 1994, Dr Subhas, a consultant psychiatrist, reported to the Respondent that as a consequence of his examination of the veteran on 15 October 1994, the Applicant has residual features of post traumatic stress disorder, and that he should be considered for an appropriate disability pension (T23R).Dr Pohlen15. In a report dated 2 February 1996, Dr Pohlen, a consultant psychiatrist and the Applicant's treating psychiatrist, stated the following opinions:"…The evidence that has been made available to me indicates that Mr Scafidi continues to suffer from a combat induced war-caused chronic post traumatic stress disorder with wide ranging co-morbid emotional and behavioural sequelae.…The level and frequency of his disabling emotional and behavioural symptoms has caused him major difficulties in his everyday functioning. These difficulties have resulted in his loss of contact with medical practitioners since the early 1970's, his loss of marriage in 1978 and his loss of his capacity for work in 1987. He has demonstrated no capacity during his period of evaluation with me for undertaking any further sustainable remunerative work for which he might have been suited by reason of education, training or experience.…" (T11, p39)

Evidence

Evidence Before The Court

The Applicant stated that he married in 1971 and commenced working as a labourer with Lysaghts in 1972/73 and later as a quality control officer for two particular machines. Two children were born, one in 1971 and one in 1974. The Applicant stated that his wife left in 1978 because of increasing difficulties and that with some time off and his foreman being a mate, he was able to continue working, with his mother and father looking after the children. In 1979/80 he found that he was having difficulty in concentrating at work and that he was experiencing nightmares. In 1980, he left work on the advice of his foreman and went on to a supporting parent's pension.10. The Applicant stated that he stayed on the supporting parent's pension until 1985/86 when, with the children being aged 15 and 12, he felt he had to do something. He applied for a job at Lysaghts, but decided against taking a job there because he did not feel he would be able to cope with the large number of Asians working there. He did however secure employment with MTL at Ingleburn, where he commenced work on a day shift as a leading hand in the reinforcement section and safety officer. After a particular incident involving a concrete mishap, the Applicant stated that following heated words with his boss he was demoted to the position of labourer. Later he was transferred to the afternoon shift and, following a run-in with the leading hand, he was sacked with a week's notice in lieu, having been given an opportunity to apologise, which he did not.11. After his dismissal, he reverted to parenting support payments before he applied for and was granted unemployment benefits, with the need to detail his job search activities every few weeks to Social Security. These involved visiting factories in the Campbelltown/Liverpool area to see if any work was available, visiting the Commonwealth Employment Service, talking to friends and screening the papers, for at this stage he needed the money with his two children being in years 9 and 10.12. On 10 September 1994 the Applicant said he moved from Minto to Morisset to live with his parents as his father had been experiencing a number of strokes from 1992 onwards. As a result his father had diminishing mobility until he died in 1995. The Applicant also indicated that his mother had been admitted to a nursing home in January 2000.13. The Applicant stated that in 1994 he met an old school friend, who was also a Vietnam Veteran and he was referred to the Vietnam Veterans' Association for advice and assistance. In 1994 the Applicant stated that he was granted a disability support pension and in 1995 a service pension, because the Department of Veterans' Affairs told him he was permanently unemployable. The Applicant also stated that when he moved to Morisset he looked around Morisset, Cardiff and Wyong for work but there was not much available, and if offered a job he probably would have taken it. The Applicant maintained that he is still looking for work as a labourer or in bar work, because he still feels he has to do something.Medical evidence14. In late 1994 the Applicant's general practitioner stated that the veteran suffered from post traumatic stress disorder and restricted respiratory function (T7, P23). On 29 November 1994, Dr Subhas, a consultant psychiatrist, reported to the Respondent that as a consequence of his examination of the veteran on 15 October 1994, the Applicant has residual features of post traumatic stress disorder, and that he should be considered for an appropriate disability pension (T23R).Dr Pohlen15. In a report dated 2 February 1996, Dr Pohlen, a consultant psychiatrist and the Applicant's treating psychiatrist, stated the following opinions:"…The evidence that has been made available to me indicates that Mr Scafidi continues to suffer from a combat induced war-caused chronic post traumatic stress disorder with wide ranging co-morbid emotional and behavioural sequelae.…The level and frequency of his disabling emotional and behavioural symptoms has caused him major difficulties in his everyday functioning. These difficulties have resulted in his loss of contact with medical practitioners since the early 1970's, his loss of marriage in 1978 and his loss of his capacity for work in 1987. He has demonstrated no capacity during his period of evaluation with me for undertaking any further sustainable remunerative work for which he might have been suited by reason of education, training or experience.…" (T11, p39)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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