Tinning and Repatriation Commission (Veterans' entitlements) - [2024] AATA 3427

Tinning and Repatriation Commission (Veterans' entitlements) [2024] AATA 3427 (26 September 2024)
Division:GENERAL DIVISION
File Number:2021/4472
Re:Eugene Tinning
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Member A McLean Williams
Date:26 September 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review insofar as the Applicant is ineligible for Special Rate pension.
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 the Tribunal further directs that the matter be remitted for GARP-5 impairment assessment, for calculation of the Applicant’s entitlement to General Rate pension.
..................[SGD]....................
Member A McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – medical conditions – claim for special rate of pension – whether medical conditions caused by incapacity from war or war-caused disease – whether Applicant rendered permanently incapacitated – Tribunal finding against the Applicant – decision under review affirmed – further question of whether the Applicant’s current pension rate calculated correctly – Tribunal making a further order to remit the matter back to the Respondent for consideration of the Applicant’s current pension rate
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
CASES
Clearihan and Repatriation Commission (Veteran’s entitlement) [2019] AATA 1339
Leigh and Repatriation Commission [2006] FCA 395

McDonald v Director-General of Social Security [1984] 1 FCR 254
Re Harris and Repatriation Commission (1998) 51 ALD 789
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Watkins [2015] FCAFC 10
REASONS FOR DECISION
Member A McLean-Williams
26 September 2024
PRELIMINARY

The Applicant, Mr Eugene Tinning, seeks review before the Tribunal of a decision made on 8 June 2021[1] by the Veteran’s Review Board (‘the VRB’), under the Veteran’s Entitlements Act 1986 (‘the VEA’).
[1] T2, pp. 6-10.
By that decision, the VRB had affirmed an earlier decision by the Repatriation Commission (‘the Respondent’) made on 15 April 2020, by which the Respondent had determined to continue Mr Tinning’s pension at 80% of the General Rate, with effect from 6 November 2019. In doing so, the VRB had determined that Mr Tinning did not qualify for either the Intermediate Rate, or the Special Rate of pension, pursuant to either s.23, or s.24 of the VEA.
During this application for review the question for the Tribunal again becomes whether Mr Tinning is entitled to either the Intermediate Rate of pension under s.23 of the VEA, or the Special Rate of pension, under s.24 of the VEA. Distilled to an essence, this requires consideration whether:
(a)Mr Tinning is totally and permanently incapacitated, in the sense that Mr Tinning’s incapacity from either ‘war-caused injury’ or ‘war-caused disease’ (or both of these), is of such a nature “by itself alone” as to render Mr Tinning incapable of undertaking remunerative work for periods of more than eight hours per week (s.24(1)(b));[2] or 20 hours per week (s.23(1)(b));[3] and
(b)by reason of the incapacity from war-caused injury or war-caused disease (or both of these), 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: [2024] AATA 3427
Decision Date: 26 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Tinning against a decision of the Repatriation Commission regarding his claim for a special rate pension. The core dispute revolved around whether Mr. Tinning's current medical conditions were caused by his war service and whether these conditions rendered him permanently incapacitated for work. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Commission's decision.

The legal issues before the Tribunal were twofold: first, whether Mr. Tinning's accepted war-related medical conditions, specifically his degenerative lumbar spine and bilateral shoulder joints, were the cause of his current incapacity for work, thereby entitling him to a special rate pension. Second, the Tribunal considered whether Mr. Tinning's current pension rate had been calculated correctly.

The Tribunal considered medical evidence, including a report from Dr. Christopher Cunneen, an Occupational and Environmental Physician. Dr. Cunneen opined that Mr. Tinning's degenerative lumbar spine and bilateral shoulder conditions, accepted as war-caused, combined with a previously resolved frozen shoulder, resulted in a significantly restricted range of motion and limited capacity for prolonged sitting and standing. Dr. Cunneen concluded that Mr. Tinning lacked the functional capacity to return to paid employment, even in clerical roles, and that doing so would carry a high risk of aggravating his accepted conditions. Despite this opinion, the Tribunal affirmed the decision that Mr. Tinning was ineligible for a special or intermediate rate pension. However, the Tribunal directed that the matter be remitted to the Repatriation Commission for an updated GARP-5 impairment assessment to calculate Mr. Tinning's entitlement to a general rate pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ultimately, these are factual questions, to be answered on the basis of the medical evidence that is available for the Tribunal’s consideration. Medical evidence received before the Tribunal(i) Dr Christopher Cunneen Mr Tinning seeks to rely on the medical opinion evidence provided by Dr Christopher Cunneen, an Occupational and Environmental Physician. Dr Cunneen examined Mr Tinning on 31 January 2023 and has provided a report, also now dated 31 January 2023.[20] [20]A3, pp. 17 – 27. In his report, Dr Cunneen notes that during 2020, Mr Tinning had suffered from a left-sided frozen shoulder condition, yet Dr Cunneen also considers that this condition had fully resolved by 2021. Dr Cunneen reports that Mr Tinning had ceased his employment at Thales in June 2020 ‘on the basis of his symptomatic degenerative lumbar spine and symptomatic degenerative bilateral shoulder joints’[21] (each of which are VEA-accepted conditions). [21]A3, p.18. Similarly, Dr Cunneen notes that since June 2020, Mr Tinning has not worked in any paid employment.[22] [22]A3, p. 19. Dr Cunneen did not consider that Mr Tinning was engaging in any abnormal illness behaviour and felt that Mr Tinning’s presentation upon examination was consistent and appropriate with Mr Tinning’s reported symptoms. Only ‘active’ range of movement was tested by Dr Cunneen, as part of his clinical examination.[23][23]A3, p.20. ‘Active’ range of movement (‘ROM’) is that which the patient is able to achieve without any intervention or assistive guidance by the examining clinician. It is to be held in contrast to ‘passive’ ROM, which is that achieved by the clinician guiding the limb or joint. Ultimately, in his report, Dr Cunneen opined that Mr Tinning now qualifies for Special Rate pension:‘Mr Tinning has accepted Defence Service-related medical conditions involving his bilateral shoulder conditions and his lumbar spine. During June 2020, he ceased work as a full-time project manager with Thales on the Bushmaster project due to the negative impact of his symptomatic degenerative bilateral shoulder conditions (also associated with constitutional left frozen shoulder at the time - now settled) and his symptomatic degenerative lumbar spine (lumbar spondylosis). Since, he has not returned to any paid employment. I would highlight Mr Tinning’s constitutional left frozen shoulder (adhesive capsulitis) settled during 2021 and is not affected now in his ongoing incapacity to return to paid employment.…I would opine Mr Tinning, due to the combined impact of his symptomatic degenerative lumbar spine with grossly restricted range of lumbar motion and limited capacity for prolonged sitting and standing, does not possess sufficient functional capacity to return to work, even in clerical, administrative roles on a periodic basis of eight or more hours per week. To return this Veteran to future clerical, administrative or supervisory roles as he previously had prior to June 2020, would be associated with a very high risk of future work-related aggravations of his symptomatic degenerative lumbar spondylosis and his symptomatic degenerative bilateral shoulder pathology’.[24][24]A3, pp. 22-23.

Decision

Reasons for decision

In these circumstances the Tribunal now directs - pursuant to s.43(1)(c)(ii) of the AAT Act - that the matter be remitted for an updated GARP-5 impairment assessment for calculation of Mr Tinning’s entitlement to General Rate pension. DECISION The Tribunal affirms the decision under review insofar as Mr Tinning is ineligible for Special Rate or Intermediate Rate pension. The Tribunal further directs pursuant to s.43(1)(c)(ii) of the AAT Act that the matter be remitted for GARP-5 impairment assessment for calculation of Mr Tinning’s entitlement to General Rate pension.

Ratio Decidendi

Legal Principle Established

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