Wesley Hall and Repatriation Commission

Case [2014] AATA 569

[2014] AATA 569

Division Veterans' Appeals Division

File Number

2011/5148

Re

Wesley Hall

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 15 August 2014
Place Brisbane

The Tribunal varies the decision under review to decide that the applicant is entitled to pension at 70% of the general rate with effect from 5 May 2009; otherwise the decision is affirmed.

.............................[Sgd]........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions and benefits – Agreement that applicant entitled to pension at 70% of general rate – Whether applicant eligible for special rate of pension – Whether incapacity from defence-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work – Applicant not entitled to special rate of pension – Decision under review varied and otherwise affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42D

Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 19, 23, 24, 73, 120

CASES

Flentjar v Repatriation Commission (1997) 40 ALD 1

Jebb v Repatriation Commission (1988) 80 ALR 329

Repatriation Commission v Smith (1987) 15 FCR 327

Shi v Migration Agents Registration Authority [2007] FCAFC 59

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

15 August 2014

INTRODUCTION

  1. We have to determine whether Mr Wesley Hall (the applicant) is eligible for an earnings-related rate of pension in respect of conditions that have been accepted as attributable to his service in the Australian Army. We consider that he is not eligible for an earnings-related rate of pension, but accept the concession made by the respondent that the rate of his pension should be increased.

    PRIOR DECISIONS

  2. On 23 May 2011 a delegate of the respondent determined that the applicant’s pension should be assessed at 40% of the general rate with effect from 16 August 2009


    and increased to 60% of the general rate with effect from 21 March 2011.  On


    19 October 2011 the Veterans’ Review Board affirmed the decision. The applicant has made an application to this Tribunal for review of the decision.

    ISSUES

  3. To be eligible to be paid pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans Entitlement Act 1986 (Cth) (“the Act”).

  4. There is no issue that the applicant satisfies ss 24(1)(aa) and (aab) of the Act. During the hearing the Repatriation Commission (the respondent) conceded that the applicant is entitled to pension at 70% of the general rate from 5 May 2009 and thereby satisfies


    s 24(1)(a) of the Act.

  5. We have to determine whether the applicant meets the requirements of s 24(1)(b) and (c) of the Act which provides as follows:

    (1)       This section applies to a veteran if:

    ...

    (b)       the veteran is totally and permanently incapacitated, that is to say, the…

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Wesley Hall and Repatriation Commission [2014] AATA 569
Case
[2014] AATA 569
Decision Date

CaseChat Overview and Summary

The case of Wesley Hall against the Repatriation Commission involves the eligibility of the applicant for an earnings-related rate of pension, given his service in the Australian Army and certain accepted conditions. The court has to determine if Mr Wesley Hall qualifies for the special pension rate, as well as the rate at which his pension should be assessed. The applicant, Mr Wesley Hall, has a number of accepted conditions including thoracic spondylosis, cervical spondylosis, lumbar spondylosis, sensorineural hearing loss, tinnitus, and intervertebral disc prolapse at C3-C4 & C5-C6. The court has to decide if these conditions meet the requirements of sections 24(1)(b) and (c) of the Veterans Entitlement Act 1986 (Cth).

The court found that Mr Hall satisfies the requirements of section 24(1)(a) of the Act, as the Repatriation Commission conceded that he is entitled to pension at 70% of the general rate. However, the court determined that Mr Hall does not meet the requirements of section 24(1)(b) of the Act, as it was not reasonably satisfied that his accepted disabilities render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The court also considered whether Mr Hall satisfied section 24(1)(c) of the Act, but concluded that it was not reasonably satisfied that his war-caused injury or war-caused disease, or both, alone, prevented him from continuing to undertake remunerative work.

The court ordered that Mr Hall's pension rate should be increased to 70% of the general rate, as conceded by the Repatriation Commission. The court also directed that the respondent reconsider the decision in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

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 applicant has a number of accepted conditions: ·Thoracic spondylosis;·Cervical spondylosis;·Lumbar spondylosis;·Sensorineural hearing loss·Tinnitus; and·Intervertebral disc prolapse at C3-C4 & C5-C6.The last accepted condition relates to an injury which occurred at a rugby match in 1988. There are no medical records of this injury as the applicant did not seek treatment at the time of the injury.EVIDENCE OF APPLICANT In his statement dated 2 April 2012, the applicant has outlined the nature of his employment since he was discharged from the Army in November 1994. He initially spent twelve months caring for his son. He then worked for three months as a wardsman in a hospital. The applicant left that casual position to obtain permanent employment. From 1996 until 2005 the applicant was employed as a correctional service officer in the prison service. He worked in a high security facility where there were riots and assaults on prison officers, including himself. The applicant stated that in the prison service he could be a unit manager who manages the day to day administration of the unit, a support officer who supports that officer in unit patrols and who assists the unit manager, or a control officer who controls the movement of inmates and would sound a duress alarm if somebody is attacked. He could also serve as the officer at the gate who would control the entry of contractors and inmates into the facility. The applicant also stated that there are armed officers who patrol the perimeter of the unit; the applicant was authorised to perform this duty. The applicant was medically retired from the prison service after he was diagnosed in 2003 or 2004 with post-traumatic stress disorder. The applicant stated that he would have remained in the employment of the prison service if he could have worked in a position with general security duties with minimal contact with prisoners, but no such positions were available. The applicant stated that he was willing to return to prison work if he was allowed to work at the gate but that they wanted him to work with prisoners and he would not return to such work which would be “not good”. The applicant stated that his employment in the prison service had enabled him to do basic security work such as driving around in a van checking doors. In 2005 the applicant worked for a short period of time as a tradesman’s assistant in a company which refurbished electric motors for the mining industry. He was familiar with this work as he had an apprenticeship in 1979-1980 as an electrical fitter/motor rewinder which he left in his second year of the apprenticeship. The applicant outlined the work that he did as a tradesman’s assistant. As well as working on electric motors and transformers he would do truck deliveries, use the forklift, hydraulic jacks and the overhead crane, as well as paint motors. The applicant stated that he did everything that a tradesman did not want to do. He did that work as a tradesman’s assistant for 8 weeks. During that time he went home sick twice. These times of sickness were avoidable incidents because he could have stayed if Panadol was available.

Decision

Reasons for decision

We have to determine whether Mr Wesley Hall (the applicant) is eligible for an earnings-related rate of pension in respect of conditions that have been accepted as attributable to his service in the Australian Army. We consider that he is not eligible for an earnings-related rate of pension, but accept the concession made by the respondent that the rate of his pension should be increased. PRIOR DECISIONS On 23 May 2011 a delegate of the respondent determined that the applicant’s pension should be assessed at 40% of the general rate with effect from 16 August 2009 and increased to 60% of the general rate with effect from 21 March 2011. On 19 October 2011 the Veterans’ Review Board affirmed the decision. The applicant has made an application to this Tribunal for review of the decision.ISSUES To be eligible to be paid pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans Entitlement Act 1986 (Cth) (“the Act”). There is no issue that the applicant satisfies ss 24(1)(aa) and (aab) of the Act. During the hearing the Repatriation Commission (the respondent) conceded that the applicant is entitled to pension at 70% of the general rate from 5 May 2009 and thereby satisfies s 24(1)(a) of the Act. We have to determine whether the applicant meets the requirements of s 24(1)(b) and (c) of the Act which provides as follows:(1) This section applies to a veteran if:...(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 veteranincapable 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; Section 19 of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”: this period commenced on 16 November 2009 when the applicant made his claim and ends when the claim is determined. We are required by s 120(4) of the Act to determine any issues to our reasonable satisfaction. This provision has been held by the Federal Court of Australia to require that any issues are determined on the balance of probabilities.[1][1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.ACCEPTED CONDITIONS The applicant has a number of accepted conditions: ·Thoracic spondylosis;·Cervical spondylosis;·Lumbar spondylosis;·Sensorineural hearing loss·Tinnitus; and·Intervertebral disc prolapse at C3-C4 & C5-C6.The last accepted condition relates to an injury which occurred at a rugby match in 1988. There are no medical records of this injury as the applicant did not seek treatment at the time of the injury.EVIDENCE OF APPLICANT

Ratio Decidendi

Legal Principle Established

Dr Christian Rowan, an addiction medical physician, gave evidence by telephone. He confirmed that he first saw the applicant in 2009. He wrote reports dated 9 October 2009, 27 October 2012 and 30 November 2013. Dr Rowan opined that there was a physical and a psychological basis for the applicant’s pain. CONSIDERATION On 28 October 2013 this application was, by consent of the parties, remitted to the respondent for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The respondent arranged for the applicant to be seen by a specialist but a compensation medical advisor found medical information provided by the applicant to be contradictory.[5] One of the matters raised by the applicant was that there was no indication in the documents that the respondent had not affirmed, varied or set aside the decision in accordance with s 42D(2) of the of the AAT Act. The parties have recognised that there is some tension between ss 42D(2) and (5) of the AAT Act, with s 42D(2) providing that the respondent “may” make certain decisions and s 42D(5) requiring that the respondent “must” reconsider the decision within the time specified by the Tribunal. However, after consideration of the terms of s 42D(7) of the AAT Act, we have concluded that where there is no evidence that the respondent has reconsidered the decision, the respondent will be taken to have affirmed the decision under review.[5] Exhibit F. We have previously mentioned that the respondent now accepts that the applicant is entitled to pension at 70% of the general rate and thereby satisfies the requirements of s 24(1)(a) of the Act. We have to consider whether the applicant’s accepted disabilities, by themselves, render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Dr Bryant, who was called by the applicant, has given his opinion that the applicant may be able to work for eight hours per week if not for the post-traumatic stress disorder. Dr Bryant further stated that the applicant may be able to work part-time between eight and twenty hours a week provided he had some kind of retraining to assist him to work in an office. The applicant’s post-traumatic stress disorder is not an accepted condition. Even with the post-traumatic stress disorder, the applicant was able to hold down a position as a tradesman’s assistant for eight weeks. However, having regard to that evidence of Dr Bryant, we cannot make a finding that we are reasonably satisfied that the requirements of s 24(1)(b) of the Act has been met during the assessment period. We next consider whether the applicant has satisfied s 24(1)(c) of the Act. The Federal Court of Australia in Flentjar v Repatriation Commission[6] (“Flentjar”) has held that s 24(1)(c) of the Act requires the consideration of the following questions: 1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing [the veteran] from continuing to undertake that work?4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?[6] (1997) 40 ALD 1 at 4-5.