Sypher and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 14

Sypher and Repatriation Commission (Veterans’ entitlements) [2016] AATA 14 (20 January 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/5549

Re

Allister Sypher

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 20 January 2016

Place Sydney
The decision under review is affirmed.
.......................................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS AFFAIRS — disability pension — application for increase in pension –intermediate rate of pension – whether veteran’s war-caused incapacity renders the Applicant incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 23, 28
CASES
Chambers v Repatriation Commission (1995) 129 ALR 219
McVilly and Repatriation Commission [1987] AATA 560
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
REASONS FOR DECISION
Ms N Isenberg, Senior Member
20 January 2016

The Applicant, Allister (‘Allan’) Sypher, served for 20 years in the Australian Army as an engineer. He has a number of medical conditions that have been accepted as related to his service:
·L4-5 and L5-S1 disc lesions;
·Chondromalacia patellae of the left knee;
·Cervical spondylosis;
·Bilateral sensorineural hearing loss;
·Lumbar spondylosis; and
·Osteoarthritis of the left knee.
Pension for his conditions was initially assessed pension at 70% of general rate, but, on internal review, was increased to 80%. The Applicant sought an increase in his pension in respect of those conditions beyond 80% of the General Rate; in particular, he sought the Intermediate Rate of pension. His application for review was refused by the Veterans’ Review Board. He now seeks review by this Tribunal. The parties did not dispute that the appropriate General Rate of pension was 80%. There was no contention that the Applicant qualified for the Special Rate.
LEGISLATION
Criteria for the Intermediate Rate
The Intermediate Rate criteria are set out in s 23 of the Veterans’ Entitlement Act 1986 (Cth) (VEA) That section provides, in part:
Intermediate 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) …; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone,…

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: [2016] AATA 14
Decision Date: 20 January 2016

CaseChat Overview and Summary

In the matter of Sypher and Repatriation Commission, the primary issue before the court was the eligibility of the Applicant, a veteran, for an increase in his disability pension. The case required the court to determine whether the veteran's war-related incapacity rendered him incapable of undertaking remunerative work for more than 20 hours per week. The decision under review was whether the veteran qualified for an intermediate rate of pension under the Veterans' Entitlements Act.

The court examined the statutory criteria for determining eligibility for an intermediate rate of pension, specifically focusing on the veteran's incapacity due to service-caused conditions. The legislation mandates that the veteran's incapacity must be at least 70% of the general rate, which was undisputed in this case. Additionally, the veteran's incapacity must be such that it alone renders him incapable of undertaking remunerative work for more than 20 hours per week. The court considered the veteran's trade and professional skills, qualifications, and experience, as well as the medical evidence provided by occupational physicians, Drs Rosenthal and Chase. The court held that the veteran's skills, qualifications, and experience, particularly in the field of facility management, did not support the claim that he was unable to undertake work for more than 20 hours per week.

After reviewing the evidence and the statutory requirements, the court affirmed the decision under review. The veteran's capacity to undertake work was assessed based on his ability to perform tasks physically and mentally, which was not limited to his previous employment or formal training. The court concluded that the veteran's war-caused incapacity did not sufficiently impair his ability to undertake remunerative work for more than 20 hours per week. Therefore, the decision to deny the increase in pension was upheld.

The final orders of the court were to affirm the decision under review, thereby maintaining the status quo regarding the veteran's disability pension. The court's reasoning was grounded in the statutory criteria and the evidence presented, leading to the conclusion that the veteran did not meet the necessary conditions for an intermediate rate of pension.

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

Both Mr McKinnon and Mr Micallef confirmed that in the FM industry 12 hour days and seven day weeks are not uncommon; there was no role in the FM industry for part time work. As to the report-writing role the Applicant had undertaken for him, he said that “not much of a report” can be done in four hours a day.Medical evidence The reports and evidence of Drs Rosenthal and Chase, Occupational Physicians, are referred to below. CONSIDERATION The legislation requires that the material before the Tribunal must satisfy a number of tests. Firstly, the Applicant's degree of incapacity from war-caused conditions must be at least 70% of the General Rate: s 23(1)(a) of the VEA. There was no dispute that the Applicant met this test. Next, s 23(1)(b) of the VEA requires that an Applicant's incapacity from service-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work. This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work. Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.What are the Applicant’s trade and professional skills, qualifications and experience? Section 23(1)(b) requires an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219, where the Court said at 235:… A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.

Decision

Reasons for decision

Having come to that view, it was not necessary for me to consider the remaining criteria for the Intermediate Rate.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The reports and evidence of Drs Rosenthal and Chase, Occupational Physicians, are referred to below. CONSIDERATION The legislation requires that the material before the Tribunal must satisfy a number of tests. Firstly, the Applicant's degree of incapacity from war-caused conditions must be at least 70% of the General Rate: s 23(1)(a) of the VEA. There was no dispute that the Applicant met this test. Next, s 23(1)(b) of the VEA requires that an Applicant's incapacity from service-caused conditions, must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work. This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work. Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.What are the Applicant’s trade and professional skills, qualifications and experience? Section 23(1)(b) requires an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219, where the Court said at 235:… A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training. From Dr Chase’s report, the evidence was that the Applicant retired from the Army with the rank of Major. He holds a Bachelor’s degree in Mechanical Engineering and an associate diploma of maintenance engineering. The Applicant’s history was of a successful career as an Army officer, with an emphasis on electrical and mechanical engineering and logistics. At his rank, it can readily be assumed he also had management skills. Since leaving the Army he has worked exclusively in FM, although for a short, intense period earlier this year, he worked in a data entry role. What kinds of remunerative work might a person with the Applicant’s skills, qualifications and experience reasonably undertake?

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5549
Re	Allister Sypher
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	20 January 2016
Place	Sydney