Sharp and Repatriation Commission (Veterans’ entitlements)

Case [2016] AATA 719

Sharp and Repatriation Commission (Veterans’ entitlements) [2016] AATA 719 (16 September 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2015/3842

Re

Brian Sharp

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Ms N Isenberg, Senior Member
Date 16 September 2016
Place Sydney

The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the Intermediate Rate provided for in s 23 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 1 May 2014 and at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 20 June 2014.

...............................[sgd].........................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – intermediate rate –  the alone test – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran prevented by accepted disabilities alone from continuing in remunerative work – decision under review set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 ss 5, 23, 24

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534, [1998] FCA 464

Chambers v Repatriation Commission (1995) 55 FCR 9, (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50, [2000] FCA 328
Repatriation Commission v Buckingham, [1996] FCA 1218
Repatriation Commission v Hendy (2002) 76 ALD 47, [2002] FCAFC 424
Richmond v Repatriation Commission [2014] FCAFC 124

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Ms N Isenberg, Senior Member

16 September 2016

INTRODUCTION

  1. The applicant, Brian Sharp served for over 20 years in the RAAF.  He currently has accepted disabilities of sensorineural deafness, anxiety neurosis with phobic features, and bruxism. 

  2. On 17 April 2014 Mr Sharp sought an increase in his pension, in particular, the Special Rate of pension, provided for in s 24 of the Veterans’ Entitlements Act 1986 (the “VE Act”). A delegate of the Repatriation Commission refused that application but increased his pension to 90% of the General Rate. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 2 July 2015. Mr Sharp has applied for review of the VRB’s decision. His submission to this Tribunal is that he is entitled to the Special Rate of pension, or in the alternative the Intermediate Rate of pension, or that his pension should be at least increased to 100% of the General Rate.

  3. Mr Sharp’s entitlement to the pension at the Special Rate is to be determined under s 24 of the VE Act.

    LEGISLATIVE SCHEME

  4. The criteria for payment of the Special Rate of pension are set out in s 24 of the VE Act. Generally speaking, if any one of the criteria is not met, the applicant will not be eligible for payment of pension at that rate. The Tribunal has no discretion in this regard. To qualify for pension at the Special Rate,…

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Details
AGLC
Sharp and Repatriation Commission (Veterans’ entitlements) [2016] AATA 719
Case
[2016] AATA 719
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Sharp against a decision of the Repatriation Commission regarding his entitlement to a disability pension under the *Veterans’ Entitlements Act 1986* (Cth). The dispute centred on whether Mr. Sharp qualified for the intermediate or special rate of pension, which are contingent on the severity of his accepted war-related disabilities and their impact on his capacity to undertake remunerative work. The decision was made by Ms. N. Isenberg, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr. Sharp's accepted disabilities alone rendered him incapable of undertaking remunerative work for eight or more hours per week, and whether these disabilities alone prevented him from continuing in his previous remunerative work, thereby causing a loss of earnings. The Tribunal was required to interpret and apply the "alone test" as established in case law, which dictates that even a minor contribution from a non-war-related factor to the inability to work will disqualify a veteran from these higher pension rates. The Tribunal also considered the scope of remunerative work that could be assessed, noting it was not limited to the veteran's previous employment or qualifications.

The Tribunal's reasoning focused on the composite test outlined in section 24 of the Act, particularly the "alone" requirement. Drawing on precedent, the Tribunal emphasised that the incapacity must be solely attributable to war-related conditions, meaning any other factor contributing to the inability to work, even if secondary, would prevent the satisfaction of the test. The Tribunal considered Mr. Sharp's extensive work history, his documented anxiety and phobic conditions, and the medical evidence detailing his struggles with stress, panic attacks, and alcohol use. Despite evidence suggesting Mr. Sharp's current lifestyle and potential for self-medication with alcohol might also impact his work capacity, the Tribunal concluded that his service-related anxiety neurosis, of itself, was sufficient to render him incapable of working more than eight hours per week and to prevent him from continuing in his former employment.

Consequently, the Tribunal set aside the decision under review. It determined that Mr. Sharp was entitled to pension at the Intermediate Rate from 1 May 2014 and at the Special Rate from 20 June 2014, reflecting the Tribunal's satisfaction that he met the criteria for these pension rates based on the impact of his accepted disabilities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It was common ground that Mr Sharp had not sought to engage in remunerative work, and so the ameliorating provisions of s 24(2)(b) are not applicable.BACKGROUND AND EVIDENCE Mr Sharp provided extensive written submissions, and gave detailed, albeit sometimes confusing, evidence. He gave evidence of traumatic events which had occurred during his service, and of earlier events of which he has only now become aware through counselling. He gave evidence of working in senior positions and that he felt empowered because of those positions. However, he was easily stressed and especially could not cope when there were staff problems. He worked himself to exhaustion. He has had four failed marriages and attributes the breakup of his marriages to his anxiety condition. In 2013 he met his present wife, who is Indonesian. Following cessation of work in mid-2014 they married and moved to Indonesia. He stays at home, rarely leaving the house unless accompanied by his wife. He fills his day watching TV and doing little else. He has no social life. He has an intense fear of flying, and required medication to make the flight to Australia for the hearing. His wife owns a successful business and, if he were able, he could work in that business. He currently drinks, he told me, six cans of beer a day, but never commencing before 6 PM. Over the years he has self-medicated with alcohol. As to his “shakes” he said these are a nervous response and are not related to alcohol. He is heavily medicated, as he has been for some years. Work history Mr Sharp left the RAAF in 1989 after more than 20 years’ service. Although he was only a junior member, by the end of his career he was performing the role of a Flight Lieutenant and was responsible for stores for the whole of Northern Australia. During his service however he experienced some events to which he attributed his anxiety condition. He was hospitalised at that time, and since then he has never been free from his anxiety symptoms. For example, when he is stressed he is unable to cope, will shake and sweat profusely. After he left the RAAF he had a number of roles, mainly in the public sector, until 1996 when he worked for a private company. At first he was the general manager and was then appointed to board. Because he considered that the company engaged in some unethical business practices, he became very stressed and left that role. He said that, at that time, he was given “a medical certificate” not to work for 12 months. He did not accept that advice because working gave him self-esteem. He explained that he had had no formal training and was proud of his achievements, given that he had a number of unfortunate incidents in his youth. For a short time in 2002-2003 he operated his own company, undertaking contract project work, but it was not successful, he said, because of his anxiety issues. In 2003 he obtained a role with the Health Insurance Commission as a “strategic relations manager”, reporting to the Deputy Chairman of the Commission. He said he resigned to move interstate because of his then wife’s ill-health.

Evidence

Evidence Before The Court

In his second letter, Mr Lindenmayer provided some more information about the role the applicant had been undertaking. He wrote that the applicant was a change manager for the integration of procurement services for a large number of departments and that this was the largest activity of its type ever undertaken by the Australian Public Service. He noted that the applicant had kept him informed about his mental health issues throughout his time in the department and was very open about the impact of the issues on his work and personal life. He said it was clear from early 2014 that the applicant was having considerable health difficulties in continuing to work. He thought it was to the applicant’s credit that he undertook the transition and succession arrangements notwithstanding that his obvious difficulties in doing so. He indicated that if the applicant were fit for work he would have no hesitation in employing him in a senior role.Medical evidence In 1989 the applicant was examined at the request of the respondent by Dr Rosalee Troup, psychiatrist, who wrote in a report dated 17 April 1989 that the applicant had a long-standing phobic anxiety state. She recorded that in 1980 he had been treated at the Northside Clinic for anxiety state with generalised anxiety and phobic features. She noted that the applicant would require further treatment in the future and that although he was functioning satisfactorily at that time, he was doing so by avoiding phobic situations. In 1990 the applicant was under the care of Dr Alan Freed, psychiatrist, who provided a report dated 12 November 1990. Dr Freed wrote that the applicant had been seeing him for some months for treatment for anxiety and phobia and noted that the applicant had, in addition, well established alcohol abuse. He regarded the Applicant as moderately to seriously debilitated. He noted he was having panic attacks at the rate of about 20 per month. He considered that his prognosis in respect of his anxiety disorder was only fair, as was his prognosis with respect to episodic excessive alcohol consumption. The Applicant was seen by Dr John Saboisky, consultant psychiatrist, whose clinical notes record that the applicant was admitted to Hyson Green, the psychiatric unit of a Canberra hospital in June 2004 with “depression with suicidal ideation and excessive alcohol ingestion – multiple social problems”. Another admission was in September 2005 for “distress over complex marital situation. Alcohol abuse”. The notes record that he was unable to work. Dr Saboisky wrote in a report dated 18 April 2008 that he had seen the applicant in September 2004 after he had “hit rock bottom”. He recorded that the applicant had picked himself up and obtained employment with the federal government in a responsible position. At that time, he had been drinking only moderately. He noted that the applicant was having problems at work which affected his anxiety symptoms. The Applicant was referred to Dr Saboisky again in April 2008. The notes refer to him “struggling with nerves” and “anxiety +++”.

Decision

Reasons for decision

I am therefore reasonably satisfied that the applicant meets all the criteria for the Intermediate Rate of pension from 1 May 2014 when he reduced his hours and at the Special Rate from 20 June 2014 when he ceased work. DECISION The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the Intermediate Rate provided for in s 23 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 1 May 2014 and at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 20 June 2014.

Ratio Decidendi

Legal Principle Established

Dr Smith was referred to the suite of anxiety disorders referred to in DSM III, which had been in operation at the time the applicant’s condition was accepted by the respondent as being related to his service. Some of the disorders (including panic disorder with agoraphobia) referred to a “complication” of psychoactive substance use disorders particularly alcohol. Dr Smith explained that that entry referred to a comment that a person may resort to, for example, alcohol as a means of self-medicating.CONSIDERATION In Smith v Repatriation Commission [2014] FCAFC 53 the Full Court said in relation to s 24 that:Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Second, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (not for other reasons) from continuing earlier remunerative work. Third, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity. The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). With regard to the “alone” test, in an interpretation approved on appeal by the Full Court, the Federal Court stated in Richmond v Repatriation Commission [2014] FCAFC 124 ... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.Does Mr Sharp’s anxiety neurosis with phobic features of itself alone render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?: s 24(1)(b) This test requires an examination of the Applicant’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work. Section 28 provides assistance in determining whether an Applicant is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.What are Mr Sharp’s trade and professional skills, qualifications and experience? Section 24(1)(b) requires an examination of the applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219.