Vernard William JONES and Repatriation Commission - [2015] AATA 96

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL             )
  )        No: 2013/3377
Veterans' Appeals Division  )
Re: Vernard William JONES
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM 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 272

Repatriation 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…

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: [2015] AATA 96
Decision Date: 23 February 2015

CaseChat Overview and Summary

In the case of Vernard William Jones and the Repatriation Commission, the Federal Circuit Court considered the extent of Mr Jones' incapacity arising from war-caused injuries and whether he was prevented from continuing his last paid work due to these injuries alone. The court had to determine several legal issues including whether Mr Jones' incapacity was solely due to his war-caused injuries, whether this incapacity resulted in a loss of earnings, and whether he was working for Ms Cranston or on his own account at the time he ceased his last paid work. Furthermore, the court needed to decide whether he had been working for Ms Cranston or on his own account for a continuous period of at least 10 years before he turned 65.

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

The issues in contention are whether Mr Jones:(a)is prevented by incapacity from his war-caused injuries alone from continuing to undertake his last paid work (s.24(2A)(d));(b)is thereby suffering a loss of earnings (s.24(2A)(e));(c)was working for Ms Cranston or on his own account when he stopped undertaking his last paid work (s.24(2A)(g)(ii)); and(d)had been working for Ms Cranston or on his own account for a continuous period of at least 10 years that began before he turned 65 (s.24(2A)(g)).the evidenceMr Jones’s evidence Mr Jones recounted instances of his war service while in Vietnam. His experience included a recounting of his unit’s participation in Operation Bribie, as part of which his unit undertook an unsuccessful bayonet charge against the enemy and suffered a number of casualties. After Mr Jones’s discharge from the Army, he worked in the grocery business. He had trouble taking directions from his employers and decided to work for himself. He had friends in the carpet industry and in 1986 he started a flooring sales business called Competitive Carpet Services. Mr Jones testified he ran the business from home but attended building sites in order to determine the flooring requirements. Mr Jones was a sole trader with no employees. Mr Jones stated he worked full time until the mid-1990s when he reduced his work to approximately 15 hours per week. At about that time his first wife left him, he was drinking heavily, he was having difficulty dealing with people and was not keeping appointments. He said he could not engage with people as he smelled of alcohol, he could not think properly, his concentration was affected and his short term memory was gone. He said he also did not want his family and friends to see him, and he no longer went out. Mr Jones said that he commenced treatment with Dr Holwill during that time. Mr Jones testified that his daughter began working with the company in October 2011. He said this was because he was no longer running the company very well as a result of his alcohol problem and his neuropathy which made it difficult for him to go to work sites, climb stairs and do the measuring. Mr Jones stopped working in February 2012. He said that he would help his daughter but was not paid. He said his daughter took over the business name. Mr Jones said the 2012 tax return (Exhibit A2) was his last tax return as he has not worked since. When asked about his irritable bowel syndrome, Mr Jones said he always had to find toilets. He said his hypertension was caused by his anxiety and he had to take medication for it. He would have liked to continue working but was not able to. He would also have liked to continue on the committee of the RSL club but he said he would drink himself to death. Mr Jones spent three weeks in the Heidelberg Repatriation Hospital for alcohol detoxification on the advice of his wife and his psychiatrist, Dr Heffernan. He said that while at Heidelberg he did not want to discuss his Vietnam experiences. Since then he has reduced his drinking.

Decision

Reasons for decision

Accordingly, I find that Mr Jones is prevented from continuing to undertake his remunerative work because of incapacity from his war-caused injuries alone. I find that he satisfies the provisions of section 24(2A)(d) of the Act. DECISION I set aside the reviewable decision and remit the matter to the Respondent to determine Mr Jones’s entitlements in accordance with the findings in this 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

Division	VETERANS' APPEALS DIVISION
File Number	2013/3377
Re	Vernard William JONES
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	23 February 2015
Place	Melbourne