Stevens and Repatriation Commission (Veterans’ entitlements)

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Stevens and Repatriation Commission (Veterans’ entitlements) [2015] AATA 663 (2 September 2015)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/0625

Re

John Stevens

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Ms G Ettinger, Senior Member
Date 2 September 2015
Place Sydney

The Tribunal affirms the decision under review.

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

Ms G Ettinger, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – Special rate of pension or Intermediate rate – whether the Applicant is prevented from continuing to participate in remunerative work for more than 8 hours a week (Special rate), or 20 hours a week (Intermediate rate), due to his accepted conditions alone – whether loss of salary, wages or earnings suffered – decision under review affirmed – Veteran not eligible for pension at the Special rate or Intermediate rate

LEGISLATION

Veterans’ Entitlements Act 1986 ss 23, 24, 120

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Ms G Ettinger, Senior Member

2 September 2015

SUMMARY

  1. Mr John Stevens, the Veteran, who is now 66 years old, served in the Australian Army on operational service between 1970 and 1971. At the time Mr Stevens made a claim for pension at the Intermediate rate or Special rate pursuant to sections 23 & 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act), he was under 65. The Repatriation Commission, the Respondent in these proceedings, refused the claim, and continued Mr Stevens’ disability pension at 80% of the General rate. Mr Stevens appealed that decision to the Veterans’ Review Board, which, on 21 November 2013, substituted a decision that pension be assessed at 90% of the General rate with effect from 3 September 2010. Mr Stevens now applies for review of that decision to this Tribunal, seeking pension at the Special rate, or in the alternative, at the Intermediate rate.

  2. This is an interesting case in many ways, in particular because the Applicant, seeking a Special rate pension, or Intermediate rate pension, claims to be totally and permanently incapacitated, that is to say, 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 in regard to the Special rate pension or 20 hours a week in regard to Intermediate rate. He is however, pursuant to the evidence before me, still working, and carrying out at least some of the work he was doing before he changed the location of his work, and his abode.

  3. Mr Stevens suffers from a number of accepted war-caused conditions including:

    ·Post Traumatic Stress Disorder

    ·Alcohol Abuse

    ·Sensorineural Hearing Loss

    ·Tinnitus

    ·Solar Keratosis

    ·Non Melanotic Malignant Neoplasm of the Skin

    ·Discoid Dermatitis

    ·Sleep Apnoea

  4. During the Hearing I heard oral evidence from Mr Stevens as well as Drs A Dinnen and S Smith, both psychiatrists, and Dr R Chase, an occupational physician. I have taken all their evidence, and all the…

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Details
Case
[2015] AATA 663
Decision Date

CaseChat Overview and Summary

In the matter of Stevens and the Repatriation Commission, the applicant, Mr Stevens, sought a review of a decision regarding his eligibility for a disability pension under the Veterans' Entitlements Act 1986 (Cth). The central issue before the Court was whether Mr Stevens met the criteria for receiving a Special or Intermediate rate of pension based on his ability to participate in remunerative work due to his war-caused conditions. Specifically, the Court had to determine whether Mr Stevens was prevented from engaging in work for more than 8 hours a week due to his accepted conditions alone, and if he had suffered a loss of salary, wages, or earnings.

The Court considered Mr Stevens' extensive service in Vietnam, his subsequent career changes, and his establishment of a successful consultancy, Dunross Business Services Pty Ltd. Despite his claims of being hindered by his war-caused conditions, including PTSD and alcohol abuse, the Court found that Mr Stevens' business success and resilience in the face of these conditions undermined his argument for being wholly incapacitated. The loss of his business partner, Mr Craig Mitchell, was also found to have contributed to the eventual closure of the business. The Court concluded that Mr Stevens did not meet the criteria for the Special or Intermediate rate of pension as he was not entirely incapacitated by his conditions alone.

Consequently, the Court affirmed the decision under review, ruling that Mr Stevens was not eligible for the Special or Intermediate rate of pension. The Court's decision was based on the evidence that Mr Stevens' conditions, while impactful, did not entirely prevent him from engaging in remunerative work as claimed. The Court found that other factors, such as his business partner's departure, also played a significant role in the cessation of his business activities.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

The standard of proof in this matter is on the balance of probabilities, pursuant to section 120(4) of the Act.BACKGROUND Mr Stevens served on operational service in Vietnam as a conscript from May 1970 to May 1971. He provided three written statements for the hearing. He told me that he had been studying engineering before he was conscripted, and on his return from Vietnam, decided that he did not want to speak about his experiences in Vietnam, or meet others who had been there. He accordingly enrolled to complete his degree in Tasmania where he felt he could get away from those experiences. Mr Stevens told me that from approximately 1974/1975 he worked in civil engineering in Adelaide, then worked as a research officer for a statutory board involved in education in South Australia, followed by work for the South Australian Health Commission. He then worked with a colleague doing physical work on a trawler for a year, following which he moved to Indonesia to work on a project analysing data for an American company. Mr Stevens attributed his many changes of work, and the promiscuity in which he was indulging, to his psychiatric condition, which was not diagnosed until approximately 2010. Mr Stevens said that he moved his young family to Coffs Harbour, and then worked in Singapore in a variety of roles including consulting and training. That turned into a variety of assignments over 20 years. Mr Stevens said that the return to Australia was his decision, and in approximately 1998 – 2000, he was doing improvement programs for small business. Following his return, Mr Stevens and a partner, Mr Craig Mitchell set up a company, Dunross Business Services Pty Ltd (Dunross), a consultancy doing business valuations, giving advice regarding the sale of businesses, and improvements programs for small business. Mr Stevens held, and still holds, a Business Agents Licence, Australian Financial Services Licence, and a broker’s licence. He carried out the work for the clients while Mr Mitchell did the marketing, mailings and networking. He told me that in 2005, Mr Mitchell joined one of their clients as its managing director or general manager, because that provided a steady job with a predetermined income which was more suitable for him, as he was bringing up a young family. Mr Stevens said that although Mr Mitchell had not actively participated in the company since 2005, and was with the company he joined as managing director from 2005 – 2007, he did not resign his directorship of Dunross until 2009. In his oral evidence, Mr Stevens downplayed the loss of Mr Mitchell’s participation who had been doing the marketing and networking for the company. He indicated that even without Mr Mitchell, the company was still making money, as the brand was established by the time Mr Mitchell left. Mr Stevens told me that the marketing activities Mr Mitchell had previously undertaken had become less important by the time he left. He vigorously denied that the loss of his partner made a difference to the business.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The answer to the Flentjar questions 2, 3, and 4 are no. Accordingly, Mr Stevens does not satisfy the conditions required to receive pension at the Special rate or the Intermediate rate.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Chase observed that Mr Stevens had no intention of reducing his alcohol intake, and noted further that his psychiatric illness was getting worse, and was likely to deteriorate further. The Tribunal’s deliberations regarding sections 24(1)(b) and 23(1)(b) of the Act In coming to a decision regarding whether Mr Stevens meets the tests in sections 23(1)(b) or 24(1)(b) of the Act, I have taken into account his evidence and that of the doctors who treated and examined him. I say for the sake of completeness that Mr Stevens has, amongst other accepted conditions which I have listed above, PTSD and alcohol abuse, which were accepted as war-caused in 2010. All the doctors, that is Drs Keshava, Smith, Dinnen and Chase who examined Mr Stevens in connection with this claim agreed that he suffers PTSD and alcohol abuse. I accepted from the evidence that following Mr Stevens’ return from Vietnam he was restless, changed jobs several times, and then spent some 20 years in Singapore where he conducted a successful consultancy. I accept the evidence that indicates he was successful at his business in spite of suffering PTSD and drinking to excess, and that his marital problems and his promiscuity were the result of his psychological conditions, including alcohol abuse. I note that PTSD and alcohol had not yet been accepted as war-caused during that period. Following his return from Singapore, Mr Stevens was able, in the late 1990s, to set up and operate Dunross, a consultancy offering business consultations, sale of businesses, business valuations and other services. Mr Stevens’ evidence was that his business partner Mr Mitchell had not actively participated in the company from 2005, when he joined a company with whom Messrs Stevens and Mitchell had done business. Mr Stevens told me that Mr Mitchell was with the other company from 2005 – 2007, but did not resign his directorship of Dunross until 2009. Mr Stevens’ evidence was that after 2008 his income decreased because of changes in his approach to the business, and his ability to perform in it. He said that he suffered anxiety at meetings, was shaking, could not pick up the phone when it rang, drank alcohol to excess, and was not sleeping. He said that after he closed his business in 2011 and left Sydney, he no longer carried out sale of businesses and other work he had done previously, and only did business valuations on a small scale, working from his property in the country which he referred to as living in a one room leaky fibro shack. I am not satisfied however, that as claimed by Mr Stevens, closing his business was the result of his war-caused conditions alone. I find that notwithstanding Mr Stevens’ argument that Dunross was an established business by the time Mr Mitchell left, and his attempts to play down the loss of his business partner, that the loss of Mr Mitchell to Dunross was at least part of the reason Mr Stevens closed down the business in Sydney. Mr Stevens gave evidence in that regard at the VRB on 6 June 2013, as follows:There was a lead-up to I think the deterioration in my ability to work probably starting in the business that I had. I had a partner, another director of the company who was quite a lot younger than I was. I was very dependent on him for the marketing side and the meetings side and the social interaction side…..…… so he resigned, leaving me there on my own. I didn’t have any people in the business at that time. And from there, it seemed to deteriorate not having anybody to bounce ideas off or anything, so I would find myself going to the office and – I had a little office and I would sit there all day and often stare at the wall and basically try and fill in the day without achieving very much at all.