Stark and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2583

Stark and Repatriation Commission (Veterans' entitlements) [2017] AATA 2583 (11 December 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/3192
Re:Wesley Stark
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:11 December 2017
Place:Brisbane

The Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Stark is entitled to pension at the Special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 14 January 2015.
.......................................................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – PTSD – alcohol dependence – tinea - application for increase in pension – whether Applicant is entitled to payment of disability pension at the Special or Intermediate rate – whether satisfies the “alone test” – decision under review set aside
LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) 19, 23, 24, 25, 28, 120
CASES

Cavell v Repatriation Commission [1988] FCA 464
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Smith v Repatriation Commission (2014) 142 ALD 410
REASONS FOR DECISION
Senior Member A C Cotter
11 December 2017
BACKGROUND

Mr Wesley Stark is 40 years of age.[1]
[1] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [2].
He enlisted in the Australian Army Reserves in December 1997 and transferred to the Australian Regular Army in 1999. He continued to serve until his discharge from the Army in May 2006. During his service, he served on two deployments to East Timor, the first in 2000, and the second in 2003-2004.[2]
[2] Ibid, [4]-[6] and [11].
Following his discharge from the Army, Mr Stark found employment as a painter with Programed Property Services (“PPS”), a large Australia wide company providing a variety of services, including maintenance and painting services. He worked for PPS for eight years, first in Melbourne and then again in Brisbane, following his relocation there in 2007. After he left PPS, he worked for a few months for Amalgamated Painting Service (“Amalgamated”).[3]
[3] Ibid, [12]-[13] and [15].
Mr Stark has the following conditions which the Repatriation Commission (“Commission”) has accepted as related to his service under the Veterans’ Entitlements Act 1986 (Cth) (“Act”):
(a)Sensorineural hearing loss;
(b)Tinnitus;
(c)Post Traumatic Stress Disorder (“PTSD”); and
(d)Alcohol use disorder.
The Commission has not accepted Mr Stark’s claimed condition of tinea of the skin as being service related for the purposes of the Act.[4]
[4] Exhibit 1, T Documents, page (iii).
On 14 January 2015, Mr Stark lodged an application for an increase in his Disability Pension.[5] In it, he advised that he had ceased work in November 2014 due to his PTSD which had worsened.[6]
[5] Exhibit 1, T Documents, T 4, pages 43-53, Application for increase in Disability Pension dated
[6] Ibid, pages 47 and 48.
His last employer, Amalgamated, confirmed that Mr Stark had been employed as a casual painter from 16 June 2014 to 2 November 2014, when he ceased employment. It…

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: [2017] AATA 2583
Decision Date: 11 December 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Stark for an increase in his disability pension, specifically seeking payment at the Special or Intermediate rate. The dispute before the Administrative Appeals Tribunal (AAT) revolved around whether Mr Stark's accepted war-caused conditions, including Post-Traumatic Stress Disorder (PTSD) and tinea, rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, thereby satisfying the "alone test" under the *Veterans' Entitlements Act 1986* (Cth).

The Tribunal was required to determine if Mr Stark met the criteria for payment of a disability pension at the Special Rate, as stipulated in section 24 of the Act. This involved assessing whether his incapacity from war-caused injury or disease, considered in isolation, was sufficient to prevent him from working more than eight hours per week. The Tribunal also needed to consider the second limb of section 24(1)(c), which relates to the loss of salary, wages, or earnings due to the war-caused condition.

The Tribunal found that several preliminary criteria for the Special Rate pension were met, including Mr Stark's age and his entitlement to a Disability Pension at 90 percent of the General Rate. Crucially, the Tribunal considered the medical evidence regarding Mr Stark's PTSD and tinea. Reports from Dr Janis Carter indicated that Mr Stark was totally and permanently incapacitated for work due to his PTSD, and that this condition alone prevented him from working even eight hours per week. Dr Seemeen Parvez's assessment also supported the view that Mr Stark's PTSD and anger restricted his capacity to work to less than eight hours per week. The Tribunal also accepted that the tinea condition, particularly when requiring the wearing of closed footwear, would be an obstacle to returning to work. The Tribunal concluded that Mr Stark had suffered a loss of earnings as a result of his war-caused conditions.

Accordingly, the Tribunal determined that Mr Stark met all the criteria for the Special Rate of pension from 14 January 2015. The decision under review was set aside, and Mr Stark was found to be entitled to pension at the Special Rate from that date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In a medical impairment assessment report completed in March 2016, Dr Carter described Mr Stark as totally and permanently incapacitated for work, “even for a sheltered workshop”. He could not cope with groups; his employability had gone beyond being able to work part of the time.[33] In another certificate later that year, she confirmed that she had recommended that Mr Stark stop work since he was unfit for work because of his PTSD alone.[34] [33] Exhibit 1, T Documents, page 117, Emotional and Behavioural Medical Impairment Worksheet by Dr Janis Carter dated 8 March 2016. [34] Exhibit 4, medical certificate of Dr Janis Carter dated 9 August 2016.The tinea condition – the lay evidence Mr Stark gave evidence at the hearing, affirming the truth and accuracy of his earlier statement.[35] In that statement, he said that his first serious experience of tinea occurred during a training exercise at Wide Bay in Queensland prior to his first deployment to East Timor. It rained for seven days and nights during the exercise and he was drenched most of the time. Mr Stark noticed that he was suffering from problems with his feet and sought medical attention. He spent two or three days at a mobile Military Hospital where he received treatment. He again suffered from tinea on his first deployment to East Timor where it rained frequently.[36][35] Exhibit 12, statement of Wesley Stark dated 23 May 2017.[36] Ibid, [7]-[8] and [10]. He confirmed that his discharge from the Army was due to personal reasons concerning his eldest daughter and issues with her mother. His foot condition was not a factor in his discharge.[37][37] Transcript of proceedings dated 2 November 2017, page 6, lines 13-26. Following his discharge from the Army, Mr Stark suffered from his tinea condition at irregular intervals. From time to time while employed by PPS, he was required to wash down buildings before undertaking painting work. The washing down involved the use of heavy duty water apparatus and in the process of undertaking the work, his boots, socks and feet would get wet. It was after those episodes, of his feet and footwear becoming thoroughly wet, that he suffered a recurrence of the tinea condition. Both feet would be affected. When wet, they would become smelly, as would his boots.[38] [38] Exhibit 12, statement of Wesley Stark dated 23 May 2017, [13], [14] and (second) [14]. Mr Stark told me that he would not really call his condition tinea, describing it as “more like a pitting” to his feet. His feet would hurt while they were drying out.[39] He said that while he was working, his feet were fine, but that he suffered discomfort once he removed his boots to air. He would go barefoot for an hour or two, with his feet elevated. Once his feet dried out, they “came good again” and he was okay again that night or the next morning. In about 2013, he was prescribed a medication but after that, he ceased taking it.[40][39] Transcript of proceedings dated 2 November 2017, page 7, lines 13-16.[40] Ibid, page 8, line 42 to page 9, line 8; page 9, line 42 to page 10, line 18; and page11, line 46 to

Decision

Reasons for decision

There is no doubt that the war-caused incapacity has led Mr Stark to suffer a loss of salary, wages or earnings that he otherwise would not have suffered but for his war-caused condition. As such, I consider that the second limb of s 24(1)(c) is satisfied.CONCLUSION I am reasonably satisfied that Mr Stark meets all the criteria for the Special rate of pension from 14 January 2015. Accordingly, the Tribunal sets aside the decision under review, and in place of that decision, determines that Mr Stark is entitled to pension at the Special rate provided for in s 24 of the Act, with effect from 14 January 2015.

Ratio Decidendi

Legal Principle Established

Further, it was said that notwithstanding any incapacity that Mr Stark might have as a result of his accepted psychiatric condition, Dr Parvez’s evidence supports a finding that the tinea condition would be an obstacle to his returning to work as a painter; Mr Stark would suffer from symptomatology associated with his tinea condition in circumstances where he was required to wear closed in footwear, such as the protective boots worn by painters.[96][96] Ibid, [25].CONSIDERATION It is not in dispute that a number of the criteria prescribed by s 24 are satisfied. I address those matters first before proceeding to consider the application of s 24(1)(c).Pension threshold questions There is no doubt that Mr Stark made an application under s 15 of the Act for an increase in the rate of pension he was receiving. At the time of making the claim, he was under the age of 65. Therefore, the requirements of s 24(1)(aa) and s 24(1)(aab) are satisfied. As Mr Stark has been found to be entitled to payment of his Disability Pension at 90 percent of the General rate, the requirement in s 24(1)(a) is also satisfied. Further, s 25 of the Act, dealing with temporary payment at the Special Rate, is not applicable. There is no suggestion that Mr Stark is or was “temporarily” incapacitated by a war-caused injury or war-caused disease, or both. I therefore consider that the requirement in s 24(1)(d) is also satisfied.The requirement in s 24(1)(b) It is common ground that the requirement in s 24(1)(b) is satisfied. That paragraph requires Mr Stark to show that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. For that purpose, the only matters that are to be considered are those listed in s 28 of the Act. For Mr Stark, it was submitted that, based on the evidence before it, the Tribunal should reasonably find that he satisfies the s 24(1)(b) criterion. In particular, I was referred to the report of Dr Carter of 26 August 2015 and the “Capacity to Work” report completed by Dr Parvez in October 2015.[97] Dr Carter expressed the view that Mr Stark was totally and permanently incapacitated for work due to his PTSD. He could not work even eight hours per week due to this condition and the likelihood of his rehabilitation to return to the workforce was remote.[98] Dr Parvez considered that Mr Stark could work part-time, but less than eight hours per week. She said that Mr Stark’s PTSD and anger were the conditions that prevented or restricted his capacity to work.[99][97] Exhibit 13, Applicant’s Amended Statement of Facts and Contentions dated 24 July 2017, [5]-[7].[98] Exhibit 1, T Documents, T 15, page 94, medical report of Dr Janis Carter dated 26 August 2015.[99] Exhibit 1, T Documents, T 17, pages 107-108, “Capacity to Work- Ceased or Ceasing Work” report by Dr Seemeen Parvez dated 26 October 2015.