SPYM and Repatriation Commission (Veterans' entitlements) - [2018] AATA 476

SPYM and Repatriation Commission (Veterans' entitlements) [2018] AATA 476 (13 March 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/2995
Re:SPYM
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:13 March 2018
Place:Brisbane

The decision under review is varied and remitted to the Respondent for appropriate action with the additional determination that SPYM is entitled to payment of an intermediate rate of pension effective from 27 June 2013.
...................[sgd].....................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – where the veteran is in receipt of the pension at 90% of the general rate – where the veteran has suffered from a number of defence-caused and non-defence caused conditions in the past – intermediate rate pension – where the veteran does not seek the pension at the special rate – “alone” test – whether the veteran was prevented from undertaking part-time work due to accepted conditions alone – whether other factors apply – Flentjar principles – decision under review varied and remitted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 14, 15, 19, 21A, 22, 23, 24, 25, 27, 28, 30, 70, 71, 120; Div 2A, 3, 6, 7
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Cavell v Repatriation Commission (1988) 9 AAR 534
Chopping and Repatriation Commission [2013] AATA 362
Flentjar v Repatriation Commission (1997) 48 ALD 1; 26 AAR 93
Forbes v Repatriation Commission (2000) 101 FCR 50
Furnell and Repatriation Commission [2011] AATA 149
Hales and Repatriation Commission (1986) 11 ALN 281
Hendy v Repatriation Commission [2002] FCA 602
Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625
Morgan and Repatriation Commission [1989] AATA 133
Murray v Repatriation Commission [2016] FCA 1150; (2017) 153 ALD 321
Peacock v Repatriation Commission [2004] FCA 1449; 40 AAR 143
Re Easton and Repatriation Commission (1987) 6 AAR 558
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53; 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221
Vulich and Repatriation Commission [2012] AATA 547
Watkins v Repatriation Commission [2014] FCA 787
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
13 March 2018
INTRODUCTION

SPYM (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) dated 19 February 2015 that:
(a)affirmed the decision of the Repatriation Commission (the Respondent) that the veteran’s condition of rotator cuff tendinopathy of the right shoulder was not service-related; and
(b)set aside the Respondent’s decision that the veteran was entitled to a pension assessed at 80% of the General Rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act), and instead assessed the pension at 90% of the General Rate – Exhibit 1 T2 B –B1.
The veteran initially lodged a…

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: [2018] AATA 476
Decision Date: 13 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by SPYM against a decision of the Repatriation Commission concerning the veteran's entitlement to an intermediate rate pension. The veteran was in receipt of a pension at 90% of the general rate and had a number of defence-caused and non-defence caused conditions. The veteran was not seeking the pension at the special rate, but rather the intermediate rate, which required consideration of the "alone" test.

The primary legal issue before the Tribunal was whether the veteran was prevented from undertaking part-time work due to his accepted conditions alone, or whether other factors were relevant to this determination. This required the Tribunal to consider the principles established in *Flentjar* regarding the assessment of a veteran's capacity for work in the context of multiple conditions, some of which were not defence-caused.

The Tribunal reasoned that the veteran's accepted conditions, both individually and collectively, had a significant and ongoing impact on his quality of life and his ability to engage in employment. Medical evidence indicated severe tinnitus, bilateral sensorineural hearing loss, degenerative arthropathy in his lumbar spine and knees, cervical spondylosis, and rotator cuff tendinopathy. The veteran's own evidence detailed how pain, sleeplessness, irritability, difficulty concentrating, and hearing impairment, compounded by long and frequent absences due to injuries, had generated a perception of unreliability and intolerance, hindering his career progression and future employment prospects. The Tribunal found that the veteran had no prospects of re-employment.

The Tribunal varied the decision under review and remitted the matter for reconsideration of the veteran's entitlement to an intermediate rate pension, applying the correct legal principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The final question in the form asks veterans to list the main ways their disabilities affect the way they live now. The veteran wrote three pages on the ways he claimed his disabilities impacted on his life. Most of the his information repeats what is set out above, however pertinent extracts are set out below (Exhibit 1 T6 pp. 67 – 69):“Individually, and collectively, my disabilities have fundamentally detracted from my quality of life in a personal, professional and family sense.I have done nothing about this in an official capacity for over 20 years. This reflects an ‘uninformed and unreasonable’ tendency for ex-military members to be stoical, suffer in silence and not be seen to be whingers. In essence, I was ashamed and embarrassed to do anything about it.Furthermore, I suffered considerably in silence, rather than risk the disabilities having an adverse effect on my military career…My family relationship had almost broken down irretrievably and I had distanced myself from my wife and children. I entered two separate periods of rehabilitation and am now teetotal…Notwithstanding this, I still have treatment for depression to control mood swings, anger etc. I also have ongoing medication to assist in pain and inflammation management, digestion system, sleep etc…In addition, my disabilities had a direct impact on my ability to establish a successful follow on career. As a colonel, I thought I had the attributes to become a manager (at a reasonably senior level) in the public service in a discipline (transport and logistics) that was very closely aligned with my service experience. Unfortunately, this did not eventuate.Pain and sleeplessness contributed to tiredness, irritability, and difficulty concentrating. This was compounded by difficulty hearing others and hence ignoring or misinterpreting them. Furthermore, I had long and frequent absences due to my injuries. Collectively, these factors generated a general perception that I was rude, unreliable, intolerant etc. My absences were interpreted as ‘absenteeism’ and subsequently a formal investigation was conducted by a consultant engaged by senior management. Even though the investigation concluded that my absences were justified by medical evidence, the stigma remained.”MEDICAL EVIDENCEHearing The veteran was examined by Ms Michelle Leadbetter, Audiologist in October 2013. The veteran underwent an audiological assessment and the diagnosis was as follows (Exhibit 1 T7 p. 71):“Attached is [the veteran’s] audiogram which shows a mild steeply sloping to profound bilateral sensorineural hearing loss from 1KHz onwards.[The veteran] reports experiencing very severe tinnitus, present every day, causing distraction, loss of concentration and regularly interfering with sleep.The results also indicate that [the veteran] would benefit from the use of hearing aids.I have recommended [the veteran] apply to the Office of Hearing Service for a voucher and will apply to RAPs for assistive devices for his Tinnitus and for TV use.”Bowel Problems

Decision

Reasons for decision

Dr Peter Sharwood, Orthopaedic Surgeon, examined the veteran on 20 November 2013 and prepared a comprehensive report on his leg, shoulder and spine conditions. Dr Sharwood’s findings and conclusions are set out below (Exhibit 1 T9 pp. 85- 86):“I have been able to review images of his lumbar spine and left shoulder taken on 20 November 2013 and confirm that he has degenerative arthropathy of the left acromioclavicular joint. In the lumbar spine he has evidence of grade 1 spondylolisthesis at L5/S1 with pars interarticular defects. There is narrowing of the L5/S1 discs space and evidence of facet joint arthropathy. The remainder of the lumbar spine appears to be well preserved. I note images of 16 October 2007 of his back also indicated spondylolisthesis at L5/S1 with bilateral pars interarticularis defects. Minor degenerative changes were noted at that time.I have reviewed images of his right shoulder taken on 30 October 2013 and would concur that there is no evidence of abnormality in the glenohumeral joint or major pathology within the acromioclavicular joint. I note the ultrasound of the right shoulder reveals minor tendinopathy of the supraspinatus tendon. There is some calcification within the subscapularis muscle but this is not apparent on plain films.Images of his cervical spine taken on 30 October 2013 show evidence of degenerative changes of theC5/6 level with intervertebral disc space loss and osteophytes. Similar appearances at C6/7. There is no evidence of crush fractures.Images of both knees taken on 12 July 2013 reveal bilateral genu varum deformity with narrowing of the medial compartment joint space on both left and right sides. Patellofemoral disease is noted on the right side and magnetic resonance of the right knee confirms full thickness chondral defects in the medial femoral condyle and evidence of degenerative changes and previous medial meniscectomy. An effusion was noted to be present when this image was taken.Images of his ankles reported in April 2004 revealed no abnormality. However, images of his ankles taken on 12 July 2013 confirm the appearance of early osteoarthritic changes in the left ankle with marginal osteophytes though no joint space narrowing was observed. Images of the right ankle showed no arthritic changes.ConclusionsThe records confirm that [the veteran] has had resection of the degenerative tear of the medial meniscus of the left knee in 1996. He has evidence of degenerative arthritis within the knee.There is evidence of chondromalacia patella and degenerative arthritis of the right knee most likely secondary to previous arthrotomy and right knee trauma.[The veteran] is confirmed to have cervical spondylosis.[The veteran] is confirmed to have spondylolisthesis L5/S1 with associated lumbar spondylosis.[The veteran] is noted to have acromioclavicular arthritis of the left shoulder.[The veteran] is noted to have rotator cuff tendinopathy of the right shoulder.” Dr Sharwood also made the following observations on the employment prospects of the veteran (Exhibit 1 T9 p. 83):“[The veteran] has not been employed for many years and has no prospects of being re-employed.”

Ratio Decidendi

Legal Principle Established

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