Weeks and Repatriation Commission (Veterans' entitlements) - [2019] AATA 4421

Weeks and Repatriation Commission (Veterans' entitlements) [2019] AATA 4421 (31 October 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/2900
Re:Roger Weeks
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:31 October 2019
Place:Brisbane

The decision under review is affirmed.
..................................[SGD]......................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS’ – military compensation – Veterans’ Entitlements Act – application for an increase in the rate of pension – disability pension – special rate of pension – war-caused injury or war-caused disease – claim for post-traumatic stress disorder – Flentjar methodology – alone test – suffering a loss of salary, wages or earnings – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Banovich v Repatriation Commission (1986) 6 AAR 113
Birtles v Repatriation Commission (1991) 33 FCR 290
Cavell and Repatriation Commission (1986) 10 ALN N233
Chambers v Repatriation Commission (1995) 55 FCR 9
Counsel v Repatriation Commission (2002) 122 FCR 476
Flentjar v Repatriation Commission (1997) 26 AAR 93
Forbes v Repatriation Commission (2000) 101 FCR 50
Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Watkins (2015) 228 FCR 573
Sheehy v Repatriation Commission (1996) 66 FCR 569
Smith v Repatriation Commission (2014) 220 FCR 452
Starevich v Repatriation Commission (1987) 18 FCR 221
Watkins v Repatriation Commission (2014) 142 ALD 106
Wright and Repatriation Commission (2005) 144 FCR 302
SECONDARY MATERIALS
Approved Guide to the Assessment of Rates of Veterans’ Pensions
Statement of Principles No. 34 of 2001 – Chondromalacia Patellae
Statement of Principles No. 6 of 2006 – Spondylolisthesis and Spondylolysis
REASONS FOR DECISION
Deputy President J Sosso
31 October 2019
INTRODUCTION

Mr Roger Weeks (the veteran) seeks a review of a 8 May 2018 decision of the Veterans’ Review Board (VRB) which continued the veteran’s disability pension at 100% of the General Rate – Exhibit 1 T114 pp. 588 – 594.
At the date of the Hearing, the veteran was 64 years old. He enlisted in the Royal Australian Air Force (RAAF) on 10 September 1974 and was discharged on 26 August 1988, having rendered eligible service as a Member of the Forces during this period – Exhibit 1 T106 p. 562.
The veteran enlisted as a radio technician, but initially rendered service as a general hand and subsequently as a safety equipment operator and photographer – Exhibit 1 T93 p. 478.
The veteran performed duties as a general hand for the first twelve months of his service. This entailed “anything from sweeping the floors to anything. Anything that someone wanted something done, I did it” – Transcript (Tr.) 10 June 2019 p. 17.
Subsequently, the veteran performed duties of a safety equipment officer, which entailed packing parachutes and life rafts as well as duties involving sewing machines. The veteran performed these duties for approximately five…

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 4421
Decision Date: 31 October 2019

CaseChat Overview and Summary

This matter concerned an application by a veteran for an increase in the rate of their disability pension under the *Veterans' Entitlements Act 1986* (Cth). The veteran sought a special rate pension, alleging a war-caused injury or disease, specifically post-traumatic stress disorder, had resulted in a significant loss of earnings. The Repatriation Commission had previously made a decision regarding the veteran's pension entitlement, which was now under review by the Tribunal.

The primary legal issues before the Tribunal were whether the veteran satisfied the criteria for a special rate pension, particularly concerning their capacity for remunerative work. This involved interpreting and applying sections 24(1)(b) and 24(1)(c) of the Act, which set out different thresholds for incapacity. The Tribunal also had to consider the scope of section 28, which dictates the specific matters the Commission must have regard to when assessing a veteran's incapacity to undertake remunerative work, and whether external factors such as market conditions were relevant.

The Tribunal noted that section 24(1)(b) requires a veteran to be incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 limits the assessment of incapacity to the veteran's vocational skills, the types of work they might reasonably undertake, and the degree to which their impairment reduces their capacity for such work, excluding other considerations like market conditions. The Repatriation Commission conceded that the veteran met the requirements of section 24(1)(b), acknowledging the veteran's skills in areas like real estate and property management. However, the Tribunal ultimately found that the veteran had not satisfied the second limb of section 24(1)(c).

Consequently, the Tribunal affirmed the decision under review.

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

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal finds that the veteran has not satisfied the second limb of s 24(1)(c).DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Commission’s closing submissions comprised the previously mentioned RS which is dated 6 August 2019. As there is considerable overlap between the RS and RSFIC, in most instances reference will be made to the contentions appearing in the RS.CONSIDERATIONCapacity for work – ss 24(1)(b) and 28 As Hill J observed in Wright and Repatriation Commission (2005) 144 FCR 302 at 308/[15] ss 24(1)(b) and (c) “pose different hurdles which the veteran must surmount”. His Honour explained that s 24(1)(b):“… goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.” Rares J observed in Smith (455/[8]) the evident intention of s 24(1)(b) “is to define when a veteran is totally and permanently incapacitated for the purposes of determining whether he or she can qualify for an increase in the rate of pension.” Consequently s 24(1)(b) contemplates that a veteran is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. It is important to note that the task of the Tribunal is to make a determination on the veteran’s capacity to engage in remunerative work during the assessment period. Reference must also be made to s 28 which provides that in determining whether a veteran is incapacitated from a service caused injury or disease, or both, is incapable of undertaking remunerative work, the Commission shall have regard to the following matters only:(a)the vocational, trade and professional skills, qualifications and experience of the veteran;(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b). Section 28 is relevant only to the application of s 24(1)(b) and not to an inquiry pursuant to s 24(1)(c) – Fox v Repatriation Commission (1997) 45 ALD 317. It will be noted that s 28 requires a decision to only take into account the matters outlined in paragraphs (a) – (c). The Full Federal Court in Chambers v Repatriation Commission (1995) 55 FCR 9 held that s 28 operated to exclude matters made which might otherwise be relevant to an assessment under s 24(1)(b), such as depressed market conditions. The Commission conceded (RSFIC para 13 p. 23, RS para 13 p. 5) that the veteran satisfies the requirements of s 24(1)(b). In making this concession, the Commission noted (RS para 10 p. 5) that the veteran’s skills, qualifications and work experience allowed him to engaged in remunerative work including working in real estate and assisting in the management of rental properties. Further, for the purposes of s 28, these are, the Commission contended, considerations relevant to determining the extent to which the veteran’s accepted conditions have impaired his capacity to work.