Van Ewijk v Repatriation Commission

Case [2004] FCA 17

FEDERAL COURT OF AUSTRALIA

Van Ewijk v Repatriation Commission [2004] FCA 17

VETERANS’ AFFAIRS – disability pension – special rate – application of s 24(1)(c) and s 24(2) of the Veterans’ Entitlements Act 1986 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Income Tax Assessment Act 1936 (Cth) s 196
Veterans’ Entitlements Act 1986 (Cth) ss 24(1), 24(2)

Cavel v Repatriation Commission (1988) 9 AAR 534 discussed
Flentjar v Repatriation Commission (1997) 48 ALD 1 followed
Forbes v Repatriation Commission (2000) 101 FCR 50 discussed
Leane v Repatriation Commission [2003] FCA 889 cited
Repatriation Commission v Hendy [2002] FCAFC 424 discussed
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 discussed

PETER VAN EWIJK v REPATRIATION COMMISSION
Q 108 OF 2003

STONE J
30 JANUARY 2004
SYDNEY (Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 108 OF 2003

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WAY

BETWEEN:

PETER VAN EWJIK
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

30 JANUARY 2004

WHERE MADE:

SYDNEY (Heard in Brisbane)

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 108 OF 2003

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER WAY

BETWEEN:

PETER VAN EWJIK
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

STONE J

DATE:

30 JANUARY 2004

PLACE:

SYDNEY (Heard in Brisbane)

REASONS FOR JUDGMENT

  1. On 28 September 1999 the Repatriation Commission assessed the applicant’s disability pension at 100 per cent of the general rate of pension rather than at the higher special rate provided for by s 24 of the Veterans’ Entitlements Act 1986 (Cth) (‘Veterans Act’). The decision was affirmed by the Veterans’ Review Board on 19 September 2000 and subsequently by the Administrative Appeals Tribunal (‘Tribunal’). The applicant now appeals to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). 

    Statutory framework

  2. A veteran who satisfies the criteria in s 24 of the Veterans’ Act is entitled to a pension at a special rate. Section 24 provides:

    ‘(1) This section applies to a veteran if:

    …

    (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…

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Details
AGLC
Van Ewijk v Repatriation Commission [2004] FCA 17
Case
[2004] FCA 17
Decision Date

CaseChat Overview and Summary

Van Ewijk brought an appeal against a decision of the Veterans' Review Tribunal that rejected his claim for a disability pension under the Veterans' Entitlements Act 1986 (Cth). Van Ewijk contended that he satisfied the criteria in s 24 of the Act, which entitles a veteran to a pension at a special rate if they are totally and permanently incapacitated from undertaking remunerative work for more than eight hours per week due to a war-caused injury or disease. The Tribunal found that while Van Ewijk had a 25% loss of efficient function in his spine, this was not the primary reason for his inability to work. Instead, his post-traumatic stress disorder (PTSD), alcohol dependence, and other conditions rendered him incapable of working more than eight hours per week. The Tribunal concluded that Van Ewijk was not entitled to the special rate pension.

The court was required to determine whether Van Ewijk satisfied the criteria for a disability pension under s 24 of the Act. The primary issue was whether Van Ewijk's back injury was the sole reason preventing him from working more than eight hours per week, or if other conditions, such as PTSD and alcohol dependence, were the primary reasons. The court needed to assess the medical evidence to ascertain the true cause of Van Ewijk's inability to work.

The court examined the medical evidence, particularly the reports from Dr Sharwood, an orthopaedic surgeon, and Dr Apel, a psychiatrist. Dr Sharwood concluded that Van Ewijk's back problems did not prevent him from undertaking light engineering work for up to four hours per day, but other conditions, particularly neurological problems and PTSD, did. Dr Apel confirmed that Van Ewijk had a capacity for significant physical activity but was psychologically unable to remain in the workforce. Other medical evidence supported the conclusion that Van Ewijk's PTSD and other conditions were the primary reasons for his inability to work. The court found that the Tribunal's decision was supported by the evidence and dismissed the appeal.

The final orders of the court were that the application be dismissed and that the applicant pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

A veteran who satisfies the criteria in s 24 of the Veterans’ Act is entitled to a pension at a special rate. Section 24 provides:‘(1) This section applies to a veteran if:…(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)…(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 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.’ Background to the appeal The applicant was born on 27 August 1946. He was conscripted into the Australian Regular Army by way of the National Service scheme from 27 May 1968 and was discharged on 26 May 1970. His service included a period of service in Vietnam from 9 April 1969 to 5 March 1970. The applicant’s accepted service related disabilities are: post traumatic stress disorder (‘PTSD’); gastro-oesophageal reflux disease; hypertension; alcohol dependence or alcohol abuse; diabetes mellitus; ischaemic heart disease; chronic solar skin damage; and bilateral sensorineural hearing loss. The applicant’s claim for a disability pension and medical treatment was lodged on 12 August 1999.

Evidence

Evidence Before The Court

In October 1991, whilst working for Pioneer Concrete (Qld) Pty Ltd (‘Pioneer’) the applicant injured his back when he jumped onto a barge and slipped on some gravel on its deck. He has not worked since he sustained that injury. On 10 March 1992 he was advised that his job with Pioneer could no longer be held open for him and was retrenched. The applicant received workers’ compensation payments from 1991 to 1993. He gave evidence that he made several attempts to start his own business but was unable to do so either because the ventures contemplated were not feasible or he was not able to raise the necessary capital. The Medical Evidence The Tribunal summarised some of the more recent medical evidence before it as follows:‘Dr P Sharwood, Orthopaedic Surgeon, examined the applicant on 16 November 2001 and provided a written report (Exhibit A2). Dr Sharwood opined:“Reviewing this patient’s reports and the list of conditions which have been accepted as being due to his military service, I do not think this patient is in anyway restricted in his activities by the problems in his back. His current problems seem to be most likely cerebral damage, almost certainly secondary to alcoholism. He has carpal tunnel syndrome which is most likely secondary to his diabetes, he has some back pain which reflects the fact that he has had surgery to his back in the past, but this is in no way sufficient I believe to prevent his doing at least four hours work per day in a physical capacity. He would not be able to be employed doing four hours work today mainly because of his other conditions, specifically his neurological state and his post-traumatic stress disorder. Although his back would prevent his doing his original job as a Marine Engineer, it would certainly not prevent his doing up to four hours light engineering work per day. I am fairly certain though that he would be unable to do such work because of his other conditions, specifically his neurological problems.”Dr G Apel, Psychiatrist, saw the applicant on 27 November 2001 and 5 December 2001 and provided a written report dated 21 September 2002 (Exhibit A1). Dr Apel diagnosed the applicant as suffering war-caused PTSD and chronic type alcohol dependence and concluded:“3.It is entirely comprehsible [sic] that these psychological a symptoms and functional disability arose since physical incapacity subsequent to his back injury in 1991.4.As noted in the report [of] Dr Sharwood [the applicant] has recovered well and he has a physical capacity for at least light engineering work. Dr Sharwood is very clear that his back problems are not the major reason for his current unemployable status. 5.I concur with this opinion from a psychiatric point of view Mr Van Ewijk showing a capacity a significant degree of physical activity but psychologically has proven uncapable [sic] of remaining in the work force.6.I see his alcohol dependence as a directly secondary to his post traumatic stress disorder.”Dr J Prentis, Orthopaedic Surgeon, performed a discectomy on the applicant on 4 April 1992 and on review of the applicant on 10 June 1993 stated (T4/11):“I do not envisage that he will be able to return to a heavy, manual job, or a job that required repetitive lifting.His previous employment was one of maintenance work – marine engineering activity. It is quite unlikely that he will be able to return to this, as this requires some strength and mobility in getting himself into positions.At this stage, he is 47 years of age, and the best alternative for him would be to retrained in some lighter form of duty. I believe he would be capable of carrying out light salesperson, clerical work, and if a suitable job could be found for him – a very light, manual job.”On further review of the applicant on 23 March 2000, Dr Prentis commented (T4/155-156):“The gentleman has sustained an injury to his lower back and has required a discectomy for this in 1992. He recovered reasonably well following this and is currently exhibiting some of the signs of the back injury and disc injury.They have left him with an incapacity in his spine which would approximately a 25% maximum loss of the efficient function of his spine as a whole.This would preclude him from returning to any heavy manual work, work that required repetitive bending and lifting. He would be able to if he could find same, carry out light duty activities. Jobs where he doesn’t have to bend or lift and where he can change his position from sitting to standing at reasonably frequent intervals, e.g. console operator, clerical work, teaching type activities.So his back limits him to carrying out these light duties but he would not be able to carry out heavy duties.”Dr Wong, LMO, on examining the applicant’s capacity to work on 8 May 1998 and 6 July 1988 commented that the applicant “was not able to work due to PTSD”.Dr Leong, Consultant Psychiatrist, on 15 June 2000, also opined that the applicant’s accepted psychiatric conditions precluded him from working more than eight hours per week.’The Tribunal’s decision

Decision

Reasons for decision

STONE J
The Tribunal summarised some of the more recent medical evidence before it as follows:‘Dr P Sharwood, Orthopaedic Surgeon, examined the applicant on 16 November 2001 and provided a written report (Exhibit A2). Dr Sharwood opined:“Reviewing this patient’s reports and the list of conditions which have been accepted as being due to his military service, I do not think this patient is in anyway restricted in his activities by the problems in his back. His current problems seem to be most likely cerebral damage, almost certainly secondary to alcoholism. He has carpal tunnel syndrome which is most likely secondary to his diabetes, he has some back pain which reflects the fact that he has had surgery to his back in the past, but this is in no way sufficient I believe to prevent his doing at least four hours work per day in a physical capacity. He would not be able to be employed doing four hours work today mainly because of his other conditions, specifically his neurological state and his post-traumatic stress disorder. Although his back would prevent his doing his original job as a Marine Engineer, it would certainly not prevent his doing up to four hours light engineering work per day. I am fairly certain though that he would be unable to do such work because of his other conditions, specifically his neurological problems.”Dr G Apel, Psychiatrist, saw the applicant on 27 November 2001 and 5 December 2001 and provided a written report dated 21 September 2002 (Exhibit A1). Dr Apel diagnosed the applicant as suffering war-caused PTSD and chronic type alcohol dependence and concluded:“3.It is entirely comprehsible [sic] that these psychological a symptoms and functional disability arose since physical incapacity subsequent to his back injury in 1991.4.As noted in the report [of] Dr Sharwood [the applicant] has recovered well and he has a physical capacity for at least light engineering work. Dr Sharwood is very clear that his back problems are not the major reason for his current unemployable status. 5.I concur with this opinion from a psychiatric point of view Mr Van Ewijk showing a capacity a significant degree of physical activity but psychologically has proven uncapable [sic] of remaining in the work force.6.I see his alcohol dependence as a directly secondary to his post traumatic stress disorder.”Dr J Prentis, Orthopaedic Surgeon, performed a discectomy on the applicant on 4 April 1992 and on review of the applicant on 10 June 1993 stated (T4/11):“I do not envisage that he will be able to return to a heavy, manual job, or a job that required repetitive lifting.His previous employment was one of maintenance work – marine engineering activity. It is quite unlikely that he will be able to return to this, as this requires some strength and mobility in getting himself into positions.At this stage, he is 47 years of age, and the best alternative for him would be to retrained in some lighter form of duty. I believe he would be capable of carrying out light salesperson, clerical work, and if a suitable job could be found for him – a very light, manual job.”On further review of the applicant on 23 March 2000, Dr Prentis commented (T4/155-156):“The gentleman has sustained an injury to his lower back and has required a discectomy for this in 1992. He recovered reasonably well following this and is currently exhibiting some of the signs of the back injury and disc injury.They have left him with an incapacity in his spine which would approximately a 25% maximum loss of the efficient function of his spine as a whole.This would preclude him from returning to any heavy manual work, work that required repetitive bending and lifting. He would be able to if he could find same, carry out light duty activities. Jobs where he doesn’t have to bend or lift and where he can change his position from sitting to standing at reasonably frequent intervals, e.g. console operator, clerical work, teaching type activities.So his back limits him to carrying out these light duties but he would not be able to carry out heavy duties.”Dr Wong, LMO, on examining the applicant’s capacity to work on 8 May 1998 and 6 July 1988 commented that the applicant “was not able to work due to PTSD”.Dr Leong, Consultant Psychiatrist, on 15 June 2000, also opined that the applicant’s accepted psychiatric conditions precluded him from working more than eight hours per week.’The Tribunal’s decision

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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