Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/3377
Veterans' Appeals Division )Re: Vernard William JONES
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM TO DECISION
TRIBUNAL: Mr C Ermert, Member
DATE: 16 March 2015
PLACE: Melbourne
Upon written application of the Applicant, and with the consent of the Respondent, the Tribunal directs the Registrar, pursuant to sub 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the decision as follows:
The Tribunal sets aside the reviewable decision and substitutes a decision that the Applicant be granted an increase to his disability pension to the special rate with effect from 24 February 2012.
.............................[sgd]....................................
Member
[2015] AATA 96
Division VETERANS' APPEALS DIVISION File Number
2013/3377
Re
Vernard William JONES
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Mr C Ermert, Member
Date 23 February 2015 Place Melbourne The Tribunal sets aside the reviewable decision and remits the matter to the Respondent to determine Mr Jones’s entitlements in accordance with the findings of the Tribunal’s decision.
..........................[sgd]...............................
Mr C Ermert, Member
Veterans Entitlements - incapacity from war-caused injuries alone - decision set aside and remitted to the Respondent
Legislation
Veterans' Entitlements Act 1986 s24(2A)
Cases
Owen v Repatriation Commission (1995) FCA 1428
Husband v Repatriation Commission (2000) FCA 356
Richmond v Repatriation Commission (2014) FCA 272Repatriation Commission v Richmond (2014) FCAFC 124
REASONS FOR DECISION
Mr C Ermert, Member
23 February 2015
introduction
Mr Jones, the Applicant, was born on 17 February 1945. He undertook National Service in the Australian Army and served in Vietnam from 11 June 1966 to 14 June 1967. He has a number of war-caused disabilities including anxiety disorder, alcohol abuse, small fibre neuropathy and irritable bowel syndrome for which the Repatriation Commission (the Respondent) accepts liability.
After his discharge from the Army, he had numerous jobs in grocery and food outlets. In 1986 he founded the company Competitive Carpet Services. He was self-employed and had no employees. He engaged subcontractors to undertake the installations. He ran the company from his home.
Mr Jones worked full-time until the mid-1990s when he reduced his working hours to about 15 hours per week. By that time he was drinking to excess. In that same period, the Respondent increased Mr Jones’s disability pension to the Intermediate Rate.
In October 2011 Ms Cranston, Mr Jones’s daughter, commenced working in the business. In February 2012 Ms Cranston took over the company and continues to the run the business.
On 8 October 2011 Mr Jones applied to the Respondent for an increase in his disability pension. On 29 February 2012 the Respondent’s delegate decided to continue paying his pension at the Intermediate Rate. Mr Jones applied to the Veterans’ Review Board (VRB) for a review of the decision. On 26 June 2013 the VRB affirmed the decision to continue to pay his disability pension at the Intermediate Rate.
This matter is an application for a review of the VRB decision.
the hearing
The hearing commenced on 12 August 2014. After…
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- Case
- [2015] AATA 96
- Decision Date
CaseChat Overview and Summary
The court's reasoning involved a thorough examination of Mr Jones' war service, his subsequent employment history, and the impact of his injuries on his ability to work. The court found that Mr Jones was indeed prevented from continuing his remunerative work due to incapacity from his war-caused injuries alone, satisfying the provisions of section 24(2A)(d) of the relevant Act. It dismissed the contention that other conditions such as obstructive sleep apnoea contributed to his incapacity, noting the lack of conclusive evidence for such a diagnosis. The court also found that the other conditions for entitlement under section 24(2A) were met, leading to the decision to set aside the reviewable decision and remit the matter to the Repatriation Commission for redetermination of Mr Jones' entitlements.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
He submitted that the possibility that accepted disabilities might cause similar symptoms does not alter the effect of the legislation and the case law (in Owen v Repatriation Commission (1995) FCA 1428, paragraph 38, and Husband v Repatriation Commission (2000) FCA 356, paragraph 34), that there is a non-accepted disability contributing to preventing Mr Jones from undertaking remunerative work. In support of this submission Mr Rudge cites the judgement of the Full Court of the Federal Court in Richmond v Repatriation Commission (2014) FCAFC 124, paragraphs 58 and 65.TRIBUNAL CONSIDERATIONS I note the agreement of both parties that Mr Jones’s circumstances satisfy the provisions of all sub-sections of section 24(2A) of the Act except sub-section (d). From the evidence I am satisfied that the provisions of sub-sections (2A)(a), (b), (c), (e), (f) and (g) are satisfied in this case, and I find accordingly. The issue in contention is whether Mr Jones is prevented from continuing to undertake his last paid work because of incapacity from war-caused injury or war-caused disease alone (section 24(2A)(d)). The conditions for which the Commission does not accept liability in this case are obstructive sleep apnoea, daytime somnolence and diabetes mellitus.Obstructive Sleep Apnoea Mr Rudge submitted that Mr Jones suffers from obstructive sleep apnoea with daytime somnolence which contributes to preventing Mr Jones from undertaking his remunerative work. Mr Rudge’s contention that Mr Jones suffered from this condition was based on Dr Horsley’s evidence. Mr Rudge notes that Dr Horsley based her opinion on the history she took from Mr Jones and the report of the treating psychiatrist, Dr Peter Heffernan (Exhibit R2, page 6). Ms Ryan contended that there is no evidence before the Tribunal that Mr Jones suffers from obstructive sleep apnoea. She submitted that Mr Jones gave evidence that he had been tested for sleep apnoea and that the results revealed he did not suffer from the disorder. Ms Ryan submitted further that Dr Horsley agreed in her evidence-in-chief and cross-examination that for a diagnosis of sleep apnoea to be made, confirmation would be needed from a sleep study or other appropriate test. Ms Ryan submitted there is no evidence before the Tribunal of such a confirmation. I note the evidence of Dr Horsley that in attributing the condition of sleep apnoea to Mr Jones she relied on his own history. She had no access to any results. Dr Horsley also said that had there been a diagnosis of sleep apnoea she would expect it to have been recorded. I note there is no such record. The closest Dr Horsley’s evidence comes to a diagnosis of sleep apnoea is her statement that Mr Jones’s history was clinically suggestive of sleep apnoea. She qualified that opinion by adding that the condition may be a sleep disorder and not sleep apnoea. I am not satisfied from the evidence that Mr Jones suffers from obstructive sleep apnoea and I find accordingly. Consequently, I find that obstructive sleep apnoea does not contribute to any incapacity that prevents Mr Jones from undertaking remunerative work.Diabetes Mellitus