Stevenson and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2297

Stevenson and Repatriation Commission (Veterans' entitlements) [2021] AATA 2297 (15 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/3030
Re:David Stevenson
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:15 July 2021
Place:Melbourne

The Tribunal sets aside the reviewable decisions of 2 March 2017 and 21 March 2019, and in substitution decides that the Applicant is entitled to payment of a pension at the special rate with a date of effect as and from 23 November 2017.
........................[sgd]................................................
R Cameron, Senior Member
Catchwords
VETERANS’ AFFAIRS – benefits and entitlements – rate of service pension – Veterans’ Review Board – Applicant is redundant – capacity to work – various health conditions – war-caused – whether Applicant satisfies “all alone” test – decision under review set aside and substituted
Legislation
Veterans’ Entitlement Act 1986 (Cth)
Cases
Cavell v Repatriation Commission (1998) 9 AAR 534
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hedy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Strickland (1990) 22 ALD 10
Smith v Repatriation Commission (2014) 220 FCR 452
Summers v Repatriation Commission (2015) 230 FCR 179
REASONS FOR DECISION
R Cameron, Senior Member
15 July 2021
INTRODUCTION

The Applicant seeks review of a decision made by the Veterans’ Review Board on 2 March 2017 which decided that the Applicant should be paid a disability pension at 100% of the General Rate under the provisions of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) (“the reviewable decision”).
The matter was heard by this Tribunal differently constituted, its decision of 21 March 2019 was set aside, and the matter remitted for further hearing.
At the further hearing of this application before the Tribunal, as now constituted, no viva voce evidence was adduced. The transcript of the previous hearing, together with the documents tendered were in evidence before the Tribunal, as contained in a joint tribunal book. The matter proceeded by way of submissions only.
BACKGROUND
The Applicant served in the Royal Australian Navy from 5 January 1965 to 4 January 1985.
Following his discharge from the Navy, he worked in a variety of jobs in the transport and storage sectors. Most of that time he worked as a driver in one form or another. Between 2005 and November 2009 he reached the position of Fleet Operations Manager for Safeway Stores.
From approximately November 2009 until 30 June 2013, his position at Safeway changed to that of a part-time driver. His hours as a part-time driver were 27 per week, across three working days. One of the reasons he changed to a part-time driver was his wife’s illness and his role as her primary carer. He did receive a carer’s allowance throughout this time.
At the end of June 2013, the Fleet Operations of Safeway were subcontracted to a well-known national transport carrier, Linfox. Approximately 200 drivers including the Applicant were retrenched.
On 17 July 2013 the Applicant made a claim for an…

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 Stevenson and Repatriation Commission (Veterans' entitlement... 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: [2021] AATA 2297
Decision Date: 15 July 2021

CaseChat Overview and Summary

This matter concerned an application by the Applicant, a veteran, for an increase in his disability pension to the special rate. The Applicant had served in the Royal Australian Navy and, following his discharge, worked in various roles, primarily as a driver, until his retrenchment from Safeway Stores in June 2013 at the age of 64. He claimed that a range of accepted war-caused disabilities prevented him from undertaking remunerative work. The decision was made by the Tribunal.

The central legal issue before the Tribunal was whether the Applicant satisfied the criteria for a special rate pension under section 24 of the relevant Act. Specifically, the Tribunal had to determine if the Applicant’s incapacity from war-caused injury or disease, of itself alone, rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, and if he was, by reason of that incapacity alone, prevented from continuing to undertake remunerative work he was previously engaged in, thereby suffering a loss of earnings. The Tribunal also considered whether the Applicant had ceased work for reasons other than his war-caused incapacities.

The Tribunal reasoned that its task was to make a practical decision, guided by common sense, as to whether the Applicant's loss of remunerative work was attributable to his service-related incapacities. It accepted the Applicant's contention that the evidence, particularly from his treating general practitioner, Dr. Teo, demonstrated that his war-caused conditions alone prevented him from continuing his previous work and caused a loss of earnings. While the Applicant's initial responses to questionnaires indicated redundancy as the reason for ceasing work, the Tribunal found that by November 2017, the Applicant's war-caused conditions alone were preventing him from continuing remunerative work.

Consequently, the Tribunal concluded that the Applicant was prevented by war-caused incapacities alone from continuing to undertake remunerative work from 23 November 2017 and was suffering a consequent loss of income. The Tribunal set aside the previous decision and substituted a finding that the Applicant was entitled to payment of a pension at the special rate, with effect from 23 November 2017.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the further hearing of this application before the Tribunal, as now constituted, no viva voce evidence was adduced. The transcript of the previous hearing, together with the documents tendered were in evidence before the Tribunal, as contained in a joint tribunal book. The matter proceeded by way of submissions only.BACKGROUND The Applicant served in the Royal Australian Navy from 5 January 1965 to 4 January 1985. Following his discharge from the Navy, he worked in a variety of jobs in the transport and storage sectors. Most of that time he worked as a driver in one form or another. Between 2005 and November 2009 he reached the position of Fleet Operations Manager for Safeway Stores. From approximately November 2009 until 30 June 2013, his position at Safeway changed to that of a part-time driver. His hours as a part-time driver were 27 per week, across three working days. One of the reasons he changed to a part-time driver was his wife’s illness and his role as her primary carer. He did receive a carer’s allowance throughout this time. At the end of June 2013, the Fleet Operations of Safeway were subcontracted to a well-known national transport carrier, Linfox. Approximately 200 drivers including the Applicant were retrenched. On 17 July 2013 the Applicant made a claim for an increase in his disability pension to the special rate. At the time of his retrenchment from Safeway, the Applicant was 64 years old. The Respondent acknowledges, and it is common ground, that the Applicant has the following accepted disabilities:(a)diabetes mellitus;(b)peripheral neuropathy;(c)morbid obesity;(d)secondary chronic lymphoedema;(e)chronic simple bronchitis;(f)osteoarthritis of the left ankle;(g)bilateral sensorineural hearing loss;(h)bilateral tinnitus;(i)solar keratosis of the face;(j)non-melanotic malignant neoplasm of the skin; and(k)tinea.THE LEGISLATIVE SCHEME When an application is made for an increase in a pension under the provisions of the Act, it must be dealt with in accordance with subsections 19(5C), (6) and (9). These subsections require a decision-maker to determine, in this case, whether a special or intermediate rate is payable to the Applicant. This determination must be made for any time during the assessment period, which in this matter commences on 17 July 2013, when the Applicant’s section 15 application was received, and ending at the time when the application is determined.[1][1] Hereinafter referred to as "the assessment period". Section 23 of the Act addresses the requirements that must be satisfied for the grant of a pension at an intermediate rate. Section 24 of the Act prescribes the criteria that must be satisfied to qualify for a special rate of pension. Under subsection 23(1)(d) of the Act, consideration of whether a veteran is eligible for a pension at the intermediate rate only occurs if it is determined that sections 24 or 25 do not apply to such veteran. Section 24 provides as follows: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) either:(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; or(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and(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; and(d) section 25 does not apply to the veteran.(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

The thrust of their evidence need not be reproduced in any detail. The point was that they were all able to readily obtain further employment driving trucks or other heavy vehicles following their retrenchment from Safeway. Like the Applicant, most of them had worked for some years at Safeway and the Tribunal has no reason to doubt that they were diligent, reliable and competent employees. They worked well into their 60s. Mr Boucher, aged 64; Mr Oliver, aged 63; and Mr Lee, aged 62. Mr Graham finished his employment in approximately November 2017.MEDICAL EVIDENCEDr Teo Dr Teo has been the Applicant’s general practitioner since 2000. She gave evidence about the Applicant’s accepted conditions. In evidence from her was a “Work Ability Report” dated 22 September 2013.[12] The contents of that document are referred to in their entirety. However, some aspects of it should be referred to specifically for the purposes of these reasons. In Part D, “Opinion of findings”, in response to a request for her opinion on how the Applicant’s disability reduced his ability to work, Dr Teo stated, amongst other things: “sitting in a truck for many hours is very uncomfortable due to his peripheral neuropathy, left ankle osteoarthritis and lymphoedema”. In the same report, when requested to advise what type of work, if any, the Applicant was able to perform full-time or part-time, she responded: “[t]his patient has so many co-morbidities I believe that he is not suitable for any employer”.[12] Joint Tribunal Book at page 841. Dr Teo explained that the neuropathy from which the Applicant suffers is a condition in which basically, the nerves in the feet and lower limbs suffer reduced sensation as a consequence of his diabetes condition. An additional manifestation of this condition is that it leads to difficulties in walking over uneven surfaces and with his balance. These symptoms affect the Applicant’s ability to drive because of the sensation of his feet. She described this as a mixed sensory and motor issue, which causes the power in his feet not to be as good as it should be. This affects his ability to drive. The condition has progressed somewhat over time. A Lower Limb Condition Medical Impairment Assessment undertaken by Dr Teo was in evidence and dated 22 August 2013.[13] In response to the first question, which asked whether the Applicant experienced any symptoms of lower limb conditions during ordinary activities, she recorded: “[s]itting and laying down he has tingling, burning [and] cold sensation in his feet and legs. Left ankle gives him pain all of the time”. In response to the second question, which asked whether he experienced pain when he bears weight on the affected joint, she has recorded: “[s]ometimes the ankle gives way but pain worse if he has to move suddenly or twists”. The third question asked whether he experienced pain in the affected joint when resting. She recorded: “[a]ll of the time 3/10. Pain from peripheral neuropathy more annoying”.[13] T=documents at page 30.

Decision

Reasons for decision

The Tribunal concludes that by the time of Dr Horsley’s report on 23 November 2017, her diagnosis was that the war-caused conditions alone were preventing him from continuing to undertake remunerative work. It was work that the Applicant had been undertaking, and by reason thereof, was suffering the loss of salary wages and earnings that he would not have suffered with a history of the war-caused incapacities. CONCLUSION AND DECISION By reason of the foregoing matters, the Tribunal concludes that the Applicant was prevented by war-caused incapacities alone from continuing to undertake remunerative work that he had previously been undertaking as and from 23 November 2017. Further therefore, by reason of same, he is suffering a loss of income that he would not have been suffering if free of those war caused incapacities. Therefore, the correct and preferable decision is to set aside the reviewable decision and in substitution therefore, the Tribunal finds that the Applicant is entitled to payment of a pension at the special rate with a date of effect as and from 23 November 2017.

Ratio Decidendi

Legal Principle Established

Finally, it should be observed that Dr Hart said it was impossible to tease out the degree of restriction that his chronic simple bronchitis causes when considered with his obesity, and damaged left ankle and lymphoedema. However, his chronic simple bronchitis is wholly responsible for his flareups and resulting hospitalisations. It will be recalled that the Applicant had been recently hospitalised prior to his consultation with Dr Horsley.CONSIDERATION The Tribunal is satisfied that the remunerative work that the Applicant, as a veteran, was undertaking included, as contended by counsel, that of a truck driver, warehouse worker, warehouse supervisor and fleet operations manager. This does not seem to be controversial. The Tribunal accepts the contention of the Applicant that the relevant question to be determined by it is why the Applicant did not return to the workforce after being made redundant by Safeway. It was also contended for by the Applicant, and the Tribunal accepts this contention, that the Tribunal’s task is to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities and not to something else as well. A decision should not be made upon nice philosophical distinctions, but with an eye to reality and as a matter in respect of which common sense is the proper guide.[23][23] Cavell v Repatriation Commission (1998) 9 AAR 534 at 539; Repatriation Commission v Hedy (2002) 76 ALD 47, 54-55 [37]; Repatriation Commission v Richmond (2014) 226 FCR 21, [60]. The Applicant relies upon the evidence, in particular, of his treating general practitioner Dr Teo which has been outlined above. It is contended that this evidence demonstrates that the Applicant, by reason of incapacity from his war-caused conditions alone, was prevented from continuing to undertake remunerative work that he had previously been undertaking whilst employed by Safeway. By reason thereof, he suffered a loss of salary or wages that he would not have been suffering if he were free of the war-caused conditions. The Respondent identifies several grounds that it relies upon to resist the Applicant’s contention that it was his accepted conditions, and those conditions alone, that prevented him from continuing to work after he was made redundant by Safeway. In his application to the Respondent for a special rate pension, at question 28, the Applicant was asked what the reason was for him ceasing work including “age, illness, redundancy”. The response from the Applicant was “redundancy”.[24][24] Joint Tribunal Book at page 25. Question 4 of the “Employment Questionnaire” asked why the Applicant ceased work. He responded, “[w]ork was outsourced, our work was terminated.” Question 18 of that document asked the Applicant what he believed was preventing him from being employed, to which he responded, “current health problems and age”. In response to a Personal Details questionnaire at question 37, the Applicant, when asked why he stopped working responded with “[r]edundancy”.[25][25] Joint Tribunal Book at page 91.