Suckow and Repatriation Commission (Veterans' entitlements) - [2021] AATA 393

Suckow and Repatriation Commission (Veterans' entitlements) [2021] AATA 393 (4 March 2021)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2019/1740
Re:Detlef Suckow
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:4 March 2021
Place:Hobart

The Tribunal sets aside the decision under review and in substitution decides that the Applicant’s disability pension be assessed at the Special Rate with effect from 19 December 2017.
.......................................................................
R Cameron, Senior Member
VETERANS’ AFFAIRS – disability pension – rate of assessment – neck and spinal conditions - whether accepted conditions render Applicant incapable of undertaking work for more than 8 hours per week – incapable of undertaking remunerative work over 8 hours – decision set aside and substituted – assessed at Special Rate
Legislation
Veterans Entitlements Act 1986
Cases
Chambers v Repatriation Commission (1995) 55 FCR 9
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
INTRODUCTION.

The Applicant seeks review of this Tribunal of a decision made by the Veterans’ Review Board on 4 March 2019 (‘the reviewable decision’). The Veterans’ Review Board set aside a previous decision of 8 February 2018 which assessed the Applicant’s rate of disability pension at 100% of the General Rate. It substituted a decision that the Applicant’s disability pension be assessed at the Intermediate Rate with effect from 19 December 2017.
The Applicant contends that he is entitled to a disability pension to be assessed at what is known as the Special Rate under the applicable provisions of the Veterans Entitlements Act 1986 (‘the VE Act’).
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:
(a)The Applicant;
(b)Dr Davison, a Consultant Occupational Physician, reports from him dated 20 September 2019 and 6 June 2020 were tendered;
(c)Mr Arnold, a Vocational Rehabilitation Consultant, a report from him dated 18 January 2021 was tendered; and
(d)Dr Tschirn, a Consultant Occupational Physician, a report from him dated 10 September 2019 was tendered.
Additional documentary evidence was received as follows:
(a)A report from Kim Tidswell, a practising Vocational Rehabilitation Provider;
(b)The “T” documents;
(c)A letter from the Applicant to the Respondent dated 2 December 1999; and
(d)A bundle of Navy personnel documents concerning the Applicant’s service.
THE LEGISLATIVE REGIME APPLICABLE TO SPECIAL RATE DISABILITY PENSIONS
For the purposes of this application the applicable section of the VE Act is s 24(1)(b). Relevantly, that section provides:
(1) This section applies to a veteran if:
(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; …
In determining for the purposes of s 24(1)(b) of the VE Act whether a person is incapable of undertaking remunerative work, the decision-maker in so applying that section must only have regard to the matters enumerated in s 28 of that Act. As observed by…

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: [2021] AATA 393
Decision Date: 4 March 2021

CaseChat Overview and Summary

This matter came before the Tribunal concerning an application by the Applicant for a disability pension assessed at the Special Rate under the *Veterans Entitlements Act 1986* (VE Act). The Applicant, a former member of the Royal Australian Navy, contended that his accepted conditions rendered him totally and permanently incapacitated. The central dispute revolved around whether these accepted conditions, of themselves, made him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, as stipulated by section 24(1)(b) of the VE Act.

The Tribunal was required to determine if the Applicant met the criteria for a Special Rate disability pension, specifically whether his incapacity from war-caused injury or disease rendered him unable to undertake remunerative work for more than eight hours per week. In making this determination, the Tribunal was bound by section 28 of the VE Act, which limits the matters to be considered to the veteran's vocational, trade, and professional skills, qualifications, and experience; the kinds of remunerative work a person with those attributes might reasonably undertake; and the extent to which the veteran's impairment has reduced their capacity to undertake such work.

The Tribunal reasoned that a narrow construction of the subsections within section 28 should be avoided and that each subsection must be considered separately. Applying this approach, and having regard to the Applicant's extensive service, his demonstrated skills and attributes as an exemplary serviceman, and the evidence presented by occupational physicians and a vocational rehabilitation consultant, the Tribunal concluded that the Applicant's accepted conditions collectively rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Consequently, the Tribunal found that the Applicant was entitled to a disability pension assessed at the Special Rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Each of the subsections in s 28 must be considered. They should be considered separately. A narrow approach to the construction of these subsections should not be taken.SOME RELEVANT BACKGROUND FACTS The Applicant joined the Royal Australian Navy on 9 October 1972 at 16 years of age. He served permanently until 8 October 1992. He served in the Naval Reserve until approximately October 2002. He reached the rank of Chief Petty Officer. During the period that he was in the Navy he trained as a writer and performed a variety of tasks both in the permanent Navy and in the Reserve. Those tasks consisted of a variety of different functions in administration instruction and supervision. In the Applicant’s Navy personnel documents, it was apparent that he was an outstanding senior sailor who at all times achieved a standard of excellence in all aspects of his service career. It is completely fair to say that he was an exemplary serviceman. He demonstrated qualities of responsibility, leadership and a capacity to tackle difficult tasks. It is apparent that he had excellent organisation and planning skills with a capacity to impart his skills and knowledge that he acquired over the course of his service to others serving with him. There were glowing reports written about him by several commanding commissioned officers. Little more need be said on this topic. It is also fair to say that his evidence before the Tribunal reflected these attributes. He presented as a thoroughly decent individual who would be quite prepared to work on any occasion in any task if he were physically capable of doing so. Following his discharge from the permanent Navy he, together with his wife, worked from approximately 1993 until 2011 as fruit pickers. They also worked in the off-season carrying out various sundry tasks in orchards such as pruning, thinning, weeding and general farm maintenance. Regrettably, he ceased that work in 2011 so that he could care for his wife who was terminally ill suffering from cancer.ISSUE FOR DETERMINATION BY THE TRIBUNAL Helpfully, as a result of sensible discussions between the practitioners, the issue for resolution by the Tribunal has been confined to one question. That issue is within the meaning of s 24(1)(b) of the VE Act: do the accepted conditions from which the Applicant suffers render him incapable of undertaking work for more than 8 hours per week?SECTION 28(1)(A): THE VOCATIONAL, TRADE AND PROFESSIONAL SKILLS, QUALIFICATIONS AND EXPERIENCE OF THE APPLICANT As noted above, the Applicant joined the permanent Navy at the age of 16 years under its junior recruit program. Initially, he undertook 12 months of recruit training at which he excelled. In his intake he was the leading junior recruit winning a trophy for the most outstanding. Following his initial recruit training he undertook the writers’ course and from 1973 worked as a writer. Apparently, in the Navy the term “writer” is given to enlisted people who undertake a variety of administrative duties including, but not limited to, clerical functions.

Evidence

Evidence Before The Court

The Applicant contends that he is entitled to a disability pension to be assessed at what is known as the Special Rate under the applicable provisions of the Veterans Entitlements Act 1986 (‘the VE Act’).THE EVIDENCE BEFORE THE TRIBUNAL There was both documentary and oral evidence before the Tribunal. The following witnesses gave oral evidence:(a)The Applicant;(b)Dr Davison, a Consultant Occupational Physician, reports from him dated 20 September 2019 and 6 June 2020 were tendered;(c)Mr Arnold, a Vocational Rehabilitation Consultant, a report from him dated 18 January 2021 was tendered; and(d)Dr Tschirn, a Consultant Occupational Physician, a report from him dated 10 September 2019 was tendered. Additional documentary evidence was received as follows:(a)A report from Kim Tidswell, a practising Vocational Rehabilitation Provider;(b)The “T” documents; (c)A letter from the Applicant to the Respondent dated 2 December 1999; and(d)A bundle of Navy personnel documents concerning the Applicant’s service.THE LEGISLATIVE REGIME APPLICABLE TO SPECIAL RATE DISABILITY PENSIONS For the purposes of this application the applicable section of the VE Act is s 24(1)(b). Relevantly, that section provides:(1) This section applies to a veteran if:(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; … In determining for the purposes of s 24(1)(b) of the VE Act whether a person is incapable of undertaking remunerative work, the decision-maker in so applying that section must only have regard to the matters enumerated in s 28 of that Act. As observed by the Full Court of the Federal Court of Australia in Chambers v Repatriation Commission[1] insofar as it directs only three specified matters are to be taken into account in making the determination. That section is exhaustive.[1] (1995) 55 FCR 9 at 19 (‘Chambers’). Because the definition of “remunerative work” is expressed in the widest language to give a meaning of “any remunerative activity” the ultimate enquiry to which s 28 of the VE Act is directed is whether the Applicant’s incapacity of itself, has rendered him incapable of undertaking any remunerative activity. It is useful to reproduce in full s 28 which provides as follows:28Capacity to undertake remunerative workIn determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:(a)the vocational, trade and professional skills, qualifications and experience of the veteran;(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Decision

Reasons for decision

As the Full Court said in Chambers the extent to which a person may prepare himself for the kind of employment in question is a question of degree.[4] It needs to be approached with a degree of realism. Collectively the accepted conditions from which the Applicant suffers render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week within the meaning of s 24(1)(b) of the VE Act. [4] Chambers at 21. CONCLUSION AND DECISION

Ratio Decidendi

Legal Principle Established

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