Thompson and Repatriation Commission (Veterans' entitlements) - [2019] AATA 83

Thompson and Repatriation Commission (Veterans' entitlements) [2019] AATA 83 (1 February 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/4029
VETERANS' APPEALS DIVISION  )
Re: Tracy Thompson
Applicant

And: Repatriation Commission
Respondent
DIRECTION
TRIBUNAL:  The Hon. Dennis Cowdroy OAM QC, Deputy President
DATE OF CORRIGENDUM:         1 May 2019
PLACE:            Sydney

IT IS DIRECTED, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application be altered such that the date from which the Applicant qualifies for the intermediate rate of pension be changed from 24 December 2012 to 24 January 2012, so that paragraph 2 of the decision will read as follows:
“2. In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 January 2012 and the special rate of pension from 9 June 2017.”

......................................[sgd]...................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
Note
The Tribunal notes that it has the power to correct an order where there is an obvious error. The applicant did not intend to submit that the compensation payable commence from 24 December 2012, but, due to an error on the part of the applicant, this was the date specified in the order. The respondent accepts that it was an error in the applicant's submissions. The power to correct an obvious error is unconfined, and the Tribunal considers that the present circumstances warrant the exercise of its power under subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/4029
Re:Tracy Thompson
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:1 February 2019
Place:Sydney

The reviewable decision dated 20 June 2017 is set aside.
In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.
.......................[sgd].................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – application for pension at intermediate rate – application for pension at special rate – whether injury or disease was war-caused – cervical spondylosis – rotator cuff syndrome – decision set aside
LEGISLATION
Veterans Entitlements Act 1986 (Cth)
CASES
Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Alan George Buckingham [1996] FCA 1218
Repatriation Commission v Hendy (2002) FCA FC 424
Starcevich v Repatriation Commission (1987) 76 ALR 449
Wright v Repatriation Commission [2005] FCA 7
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
1 February 2019
INTRODUCTION
On 20 June 2017, the Veterans Review Board affirmed a Decision of the Repatriation Commission made on 16 September 2016 which continued a disability pension in favour of the applicant at 100% of the general rate and determined that the applicant was not eligible for a pension pursuant to the Veterans Entitlements Act 1986 (Cth) (the…

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: [2019] AATA 83
Decision Date: 1 February 2019

CaseChat Overview and Summary

The applicant sought review of a decision by the Veterans Review Board, which affirmed a Repatriation Commission decision denying eligibility for a disability pension at the intermediate or special rates under the *Veterans Entitlements Act 1986* (Cth). The applicant had been receiving a pension at 100% of the general rate for accepted medical conditions. The dispute centred on whether the applicant's incapacity, solely due to war-caused injury or disease, prevented her from continuing remunerative work and caused a loss of earnings, as required for the intermediate and special rates.

The court was required to determine whether the applicant's accepted medical conditions, specifically cervical spondylosis and rotator cuff syndrome, alone caused her incapacity for remunerative work. This involved assessing whether her inability to work more than eight hours per week (for the special rate) or twenty hours per week (for the intermediate rate) was solely attributable to war-caused conditions, and if so, whether this resulted in a loss of salary or wages that she would not otherwise suffer. The respondent conceded the applicant's degree of incapacity and her inability to work the requisite hours, but contested that these limitations were solely due to war-caused conditions.

The court reasoned that while the applicant had experienced neck pain, her treating orthopaedic surgeon, Dr Ghabrial, reported that her cervical spondylosis had no impact on her work and had settled down. Dr Ghabrial's reports indicated that the applicant's severe pain and inability to work were primarily due to her back, shoulders, knees, and ankles, not her neck condition. The court concluded that the applicant's cervical spondylosis was not a factor causing her incapacity for work. Consequently, the applicant was found to be suffering a loss of salary or wages because of her accepted medical conditions alone, thereby satisfying the requirements of section 24(1)(c) of the Act.

The reviewable decision of 20 June 2017 was set aside. In substitution, the court decided that the applicant qualified for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.

Orders

Orders of the court

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Background

Background to the litigation

On 20 June 2017, the Veterans Review Board affirmed a Decision of the Repatriation Commission made on 16 September 2016 which continued a disability pension in favour of the applicant at 100% of the general rate and determined that the applicant was not eligible for a pension pursuant to the Veterans Entitlements Act 1986 (Cth) (the Act) at either the intermediate or special rates of pension. The applicant seeks review of such decision.FACTS The applicant enlisted into the RAAF on 22 May 1984 as a clerk. Following recruiting training, she was transferred to the RAAF base in Wagga as a trainee. Subsequently, she was transferred to a provisional position at No 2 Stores Depot RAAF Richmond. In 1987 the applicant was posted to RAAF Amberley, and in 1990 was posted to the RAAF airbase in Pearce. The applicant was posted to RAAF Williamtown in 1998. Whilst at the Wagga base, the applicant’s duties were clerical. However, in 1985 the applicant was selected to undertake training in Group Exercise Classes. Such training would equip the applicant with the skills to provide physical training to staff. Whilst at the Williamtown base, the applicant was promoted to Sergeant, and thereafter was successful in appointments to other positions. She was subsequently appointed to the position of Flight Sergeant. While the applicant was posted at RAAF Williamtown she expressed her desire to become a Warrant Executive with the ultimate objective of becoming a Warrant Officer in the RAAF. In mid-2004 she was posted to RAAF Edinburgh, South Australia, in the role of Administrative Officer at the Australian Institute of Aviation Medicine. In 2006 the applicant was posted out of Williamtown where she was working as the acting rank of Warrant Officer. The applicant held three full-time positions at that time. On 10 June 2008 she transferred from the Permanent Air Force to the RAAF Active Reserve. In 2014 the applicant was posted to RAAF Richmond. She relocated to Newcastle in December 2016 where she continued to work in a service category. She ceased work on 9 June 2017.WORK CAPACITY The applicant has suffered from numerous medical conditions for several years. As a result, she was found to be entitled to a 100% disability pension with effect from 18 May 2009. The applicant applied for a pension at the special rate and the intermediate rate pursuant to ss 23 and 24 of the Act. It is convenient to note that the respondent concedes that the applicant warrants a general rate of pension at a rate of at least 70% and, accordingly, that the applicant satisfies the requirements of s 24(1)(a)(i) of the Act. Further, the respondent concedes that on the basis of the applicant’s accepted medical conditions as discussed below, the applicant is currently not capable of remunerative employment for more than eight hours per week and, accordingly, the applicant satisfies the requirements of s 24(1)(b). Section 23 of the Act relevantly provides:(1) This section applies to a veteran if:…(c) the veteran is, by reason of incapacity from 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 from that incapacity.

Evidence

Evidence Before The Court

In summary, the applicant bears the evidentiary burden of establishing the following (Repatriation Commission v Smith (1987) 74 ALR 537). Firstly, her degree of incapacity of at least 70% (s 24(1)(a)). The extent of the applicant’s incapacity is conceded by the respondent. Secondly, that because of such incapacity alone, the applicant is incapable of undertaking work for more than eight hours a week (s 24(1)(b); or at least 20 hours a week for the intermediate rate (s 23(1)(b)). The respondent has conceded the applicant’s inability to work such hours, but not the cause of such incapacity as being related to her war-caused injury or disease alone. Such requirements are considered in Chambers v Repatriation Commission (1995) 129 ALR 219.Applicant’s evidence The applicant gave evidence and readily acknowledged that she had experienced pain in her neck approximately eight years ago. However, she stated that, whilst such pain was disabling, she now understands that the pain in her neck was the result of her shoulder and lower back pains. The applicant stated that she was not aware of any restricted movement in her neck rotation. The applicant demonstrated that she could apparently, pain-free, provide full movements to her neck by rotation and flexion. The applicant stated that she was not suffering from any pain from her neck at present, and had not had pain in her neck for several years. The applicant relied upon two reports of her treating orthopaedic surgeon, Dr Ghabrial. Dr Ghabrial provided his first report on 15 June 2017. He records that he was first consulted on 9 September 1998 by the applicant when she complained of low back pain and left sciatica. He stated relevantly:I continued to review her regularly, and again today. At some stage she had some problems with her neck which was more wear and tear but that had no impact on her work. That settled down. She had investigations regarding both hands and there was no evidence of any arthropathy in either hand. Clinical assessment showed no conditions regarding her hands and has no difficulties at work with her hands. She had problems with both shoulders, worse on the left side. That was diagnosed as sub acromial sub-deltoid bursitis in December 2001. She was referred for ultrasound guided steroid injection.She developed symptoms in her right shoulder, similar to the left shoulder, and at present she is having problems with both shoulders in the form of pain, stiffness and weakness. Dr Ghabrial stated that he saw her regularly over the years and referred to a procedure performed in June 2016 to alleviate pain from the applicant’s back condition. He stated:She continued with her duties, with great difficulty, in the Air Force, as a financial necessity. However, her back, shoulders, knees and ankles symptoms have deteriorated to a point that she is in severe pain and needs to cease work. Her neck and hand problems do not have any impact on her work. When I saw her today she was in absolute agony to the extent that I offered to admit her to hospital. However because of some home circumstances, she was not able to do so.Taking into account her present clinical features regarding her back, which is complicated by her shoulders, knees and ankles, I believe she should accept the fact that she should lead a sedentary life and hence I believe she is not fit for any work because of her disabilities, mainly in the back, but partly because of the shoulders, knees and ankles as well. She is also taking medications which could make her drowsy hence she has to be careful about work regarding that aspect. I believe she will not be able to sustain any type of employment hence I would classify her as totally and permanently disabled.

Decision

Reasons for decision

The correct or preferable decision is that the applicant’s cervical spondylosis is not a factor which causes her incapacity for work and, accordingly, the applicant is suffering a loss of salary or wages because of her accepted medical conditions alone and thereby satisfies the requirements of s 24(1)(c) of the Act. DECISION The reviewable decision dated 20 June 2017 is set aside. In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.

Ratio Decidendi

Legal Principle Established

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