Sisley and Repatriation Commission (Veterans' entitlements) - [2018] AATA 4078

Sisley and Repatriation Commission (Veterans' entitlements) [2018] AATA 4078 (31 October 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/4878
Re:Alan Sisley
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:31 October 2018
Place:Brisbane

The decision under review is affirmed.
..........................[SGD].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – application for special rate of pension – conditions accepted as war-caused – whether applicant is entitled to intermediate or special rate of pension – whether the applicant prevented from undertaking remunerative work – whether alone test in s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) is met – whether ameliorating provisions of the Act apply – alone test is not met – ameliorating provisions are not met – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Watkins (2015) 144 ALD 17
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
31 October 2018
INTRODUCTION

The applicant, Mr Alan Sisley, is currently in receipt of the disability pension from the respondent at a rate of 80%. He is now seeking for his rate of pension to be increased to the special rate. The applicant was under 65 years of age at the time of his application.
The applicant served in the Australian Army (“the Army”) from approximately 11 June 1968 to 10 September 1969. He was a member of the Army Reserve (“the Reserves”) until November 2014 and was discharged on an invalidity basis.[1] He has not worked since this time.
[1] Exhibit F, Service medical records, p. 32.
The applicant has the following conditions accepted as war-caused by the respondent:
a)Post-traumatic stress disorder (“PTSD”)
b)Sensorineural hearing loss
c)Localised osteoarthrosis of left shoulder
d)Localised osteoarthrosis of both knees
BACKGROUND
On 1 September 2011 the applicant lodged an informal claim for the acceptance of his PTSD and an increase to his disability pension.
On 24 July 2013 the respondent accepted the applicant’s condition of PTSD as service-related with effect from 1 June 2011. The applicant’s disability pension was increased to 80% of the general rate, and to 90% of the general rate from 24 July 2011. In a subsequent decision of the respondent dated 4 December 2013, it was confirmed that the disability pension would be continued at 90% of the general rate with effect from 24 July 2011.
On 2 January 2014 the applicant requested a review of this decision which refused payment of the pension at either the intermediate rate or special rate of pension.
On 30 June 2015 the Veterans’ Review Board (“VRB”) affirmed the decision under review.
On 18 September 2015 the applicant lodged an application for review with this Tribunal.
This application originally went to a hearing on 5 December 2016. By the consent of the parties, the decision under review was remitted back to the respondent for reconsideration under s…

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.

Keep reading for free

Create a free CaseChat account to read Sisley and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 4078
Decision Date: 31 October 2018

CaseChat Overview and Summary

This matter concerned an application for review by the applicant, Mr Sisley, against a decision of the Repatriation Commission. The dispute centred on whether Mr Sisley was entitled to receive a disability pension at the intermediate or special rate, rather than the general rate he was receiving. The applicant had several conditions accepted as war-caused, including post-traumatic stress disorder, sensorineural hearing loss, and osteoarthrosis of the shoulder and knees. The decision under review, made by the Repatriation Commission on 14 February 2017, had reduced the applicant's pension to 80% of the general rate. This decision was made following a remittal of the matter to the Commission by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the special rate of pension under section 24 of the *Veterans’ Entitlements Act 1986* (Cth). Specifically, the Tribunal was required to determine if the applicant was totally and permanently incapacitated, meaning his incapacity from war-caused conditions alone rendered him incapable of undertaking remunerative work for more than 8 hours per week, as per section 24(1)(b). Crucially, the Tribunal also had to consider whether the applicant was, by reason of his war-caused conditions alone, prevented from continuing remunerative work he was undertaking and suffering a loss of earnings, as stipulated in section 24(1)(c). The Tribunal also needed to assess whether any ameliorating provisions within section 24(2) of the Act applied to the applicant's circumstances.

The Tribunal found that the applicant did not meet the requirements for the special rate of pension. While the respondent conceded that the applicant met the criterion in section 24(1)(b) regarding his inability to work more than 8 hours per week due to PTSD, the Tribunal determined that the applicant failed the "alone test" under section 24(1)(c). This test requires that the war-caused incapacity *alone* must be the reason for being prevented from continuing remunerative work and suffering a loss of earnings. The Tribunal noted that the Commission considered significant non-accepted disabilities, such as oral squamous cell cancer, colon cancer, hypertension, and cardiac issues, as contributing factors to the cessation of the applicant's employment. Furthermore, the Tribunal found that the ameliorating provisions in section 24(2) did not apply, as the applicant had not been actively seeking work since his employment ceased.

Consequently, the Tribunal affirmed the decision of the Repatriation Commission dated 14 February 2017, which reduced the applicant's disability pension to 80% of the general rate. The applicant was therefore not entitled to receive the pension at either the intermediate or special rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant has the following conditions accepted as war-caused by the respondent:a)Post-traumatic stress disorder (“PTSD”)b)Sensorineural hearing lossc)Localised osteoarthrosis of left shoulderd)Localised osteoarthrosis of both kneesBACKGROUND On 1 September 2011 the applicant lodged an informal claim for the acceptance of his PTSD and an increase to his disability pension. On 24 July 2013 the respondent accepted the applicant’s condition of PTSD as service-related with effect from 1 June 2011. The applicant’s disability pension was increased to 80% of the general rate, and to 90% of the general rate from 24 July 2011. In a subsequent decision of the respondent dated 4 December 2013, it was confirmed that the disability pension would be continued at 90% of the general rate with effect from 24 July 2011. On 2 January 2014 the applicant requested a review of this decision which refused payment of the pension at either the intermediate rate or special rate of pension. On 30 June 2015 the Veterans’ Review Board (“VRB”) affirmed the decision under review. On 18 September 2015 the applicant lodged an application for review with this Tribunal. This application originally went to a hearing on 5 December 2016. By the consent of the parties, the decision under review was remitted back to the respondent for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) On 14 February 2017 the respondent made a decision to reduce the applicant’s disability pension to 80% of the general rate with effect from 28 February 2017. By the operation of s 42D(3)(a) of the AAT Act, the application before the Tribunal is now taken to be the application for review of the decision of 14 February 2017. LEGISLATIVE FRAMEWORK The applicant’s service in the Army from 11 June 1968 to 28 February 1969 and from 12 April 1969 to 10 September 1969 is taken to be ‘operational service’ for the purposes of s 6A of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). There has been some contention regarding the specific dates the applicant served in Vietnam: however, it is sufficient for the purposes of this provision that he performed operational service. The standard of proof to be applied in this matter is outlined in s 120(4) of the Act. I must determine all relevant issues to my reasonable satisfaction. To be eligible for pension at the special rate, the requirements of s 24 of the Act must be met. Section 24 provides: 24 Special rate of pension(1) This 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) …(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; …(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; …(2) For 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Dr Bordujenko agreed with the impairment assessments which provided for a total impairment rating of 50 points from 24 July 2011 and 45 points from 1 June 2011.Decision of the respondent dated 14 February 2017 Following the remittal of this matter to the respondent for further consideration under s 42D of the AAT Act, the respondent made a decision to change the reviewable decision.[23] The respondent reduced the applicant’s pension to 80% of the general rate with effect from 28 February 2017. [23] Exhibit E, Decision of the delegate dated14 February 2017. In this decision the delegate stated that they considered that a medial impairment rating of 45 was appropriate, as well as a lifestyle rating of 3. Together these ratings combined to give a degree of incapacity of 80%. In making this decision the delegate considered recent evidence, including a hearing assessment of 18 July 2016, Dr Clark’s report of 26 July 2016 and Dr Flanagan’s psychiatric assessment of 3 February 2017. The decision considered that the applicant suffers from significant non-accepted disabilities which contributed to the ceasing of his employment, including oral squamous cell cancer, adenocarcinoma of the colon, hypertension and cardiac issues. It was on this basis that the delegate determined that the applicant was not eligible to receive the pension at either the special or intermediate rate.SUBMISSIONSApplicant submissions It is the applicant’s contention that he should have been paid the disability pension at the intermediate rate from 3 months before his claim for PTSD was lodged with DVA, on 1 June 2011; and that he should have been paid at the special rate of pension from 4 December 2013, the date the respondent denied him payment at the special or intermediate rate. The applicant submits that he meets the criteria for the special rate of pension outlined in s 24 as he is in receipt of the pension at 80% of the general rate, he is unable to work, and he has experienced a loss of salary as a result of his inability to work. The applicant also submits that he meets the requirement in s 28 of the Act, as he has experienced a loss of wages. The applicant submits that he is unable to undertake remunerative work due solely to his accepted conditions. He has referred to his ankle condition in particular, submitting that he has endured that condition for a long time and continued working, so that is not a contributing factor. Respondent submissions The respondent submits that the applicant is not eligible to receive the disability pension at either the intermediate or special rate because the applicant does not meet the ‘alone test’ criterion outlined in s 24(1)(c). During oral submissions presented at the hearing, the respondent conceded that the applicant meets the criteria outlined in s 24(1)(b) – that is, that he is unable to work for more than 8 hours or more due to his PTSD, as verified by Dr Flanagan. The respondent submits that the ameliorating provisions outlined in s 24(2) of the Act do not apply as the applicant has not been actively seeking work since his employment with the Reserves ceased.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.