Amourous and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 40

Amourous and Repatriation Commission (Veterans’ entitlements) [2016] AATA 40 (29 January 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2014/4097
Re	John Amourous
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	29 January 2016
Place	Brisbane

The Tribunal:

(a)  affirms the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate; and

(b)  remits to the respondent the question of whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided for in s 22(4) of the Veterans’ Entitlement Act 1986 (Cth). If the applicant is entitled to the Extreme Disablement Adjustment, that benefit is only payable from when the applicant satisfies s 22(4)(b) of the Act.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – rate of disability pension – special rate – whether war-caused injury or war-caused disease “alone” prevented veteran from continuing to undertake remunerative work – accepted conditions of Posttraumatic Stress Disorder, Ischaemic Heart Disease, Sensorineural Hearing Loss, Tinnitus, Alcohol Abuse/Dependency and Lumbar Spondylosis – no evidence accepted conditions played any part in preventing applicant from engaging in remunerative work – “alone” test not satisfied – whether Extreme Disablement Adjustment – special rate decision affirmed – matter remitted to respondent for consideration of Extreme Disablement Adjustment.

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth), ss 19, 22, 23, 24, 25, 28

CASES

Repatriation Commission v Watkins [2015] FCAFC 10

Repatriation Commission v Richmond (2014) 226 FCR 21

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Butcher (2007) 94 ALD 364

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

29 January 2016

INTRODUCTION

1. On 14 October 2011, the applicant lodged a claim for an earnings-related rate of pension. On 24 November 2011, a delegate of the respondent determined that the disability pension of the applicant should be increased to 100% of the general rate with effect from 14 July 2011. On 7 May 2014, the Veterans’ Review Board (“VRB”) affirmed this decision. On 31 July 2014, the applicant lodged an application to this Tribunal for a review of that decision by seeking a special rate of pension.

   BACKGROUND

2. The applicant seeks a pension at a special rate for conditions that are attributable to his service in the Royal Australian Navy (“the Navy”). The applicant, in his statement dated 29 August 2014, outlined his last employment since the time when he was discharged from the Navy in 1987. The applicant was working for a labour hire company as a supervisor which he states was “a demanding position, but well within the skills and ability I possessed, with the possible exception of my computer skills”. The applicant, while serving in the Navy, gained trade qualifications as well as commissioned rank. He commenced work with that company in late December 1999. He states that by September 2009 his marriage and general relationships were seriously damaged. He also states that his ability to concentrate on the tasks at hand was severely impacted and that was most obvious on work sites with high occupational health and safety requirements.

   LEGISLATION

3. To be eligible for pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) which provides:

   Special rate of pension

   (1)  This section applies to a veteran if:

   (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

   (aab) the veteran had not yet turned 65 when the claim or application was made; and

   (a) …

   (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; …

   (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; …

4. To be eligible for pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act. Subsections 23(1)(b) and s 23(2) of the Act provide:

   Intermediate rate of pension

   (1)  This section applies to a veteran if:

   …

   (b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; ...

   (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

   (a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

   (b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking — if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

5. Section 28 of the Act provides:

   Capacity to undertake remunerative work

   In determining, for the purpose of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable 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).

   [Emphasis added]

6. Section 19(5C)(a) of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”. For the applicant, this period commenced on 14 October 2011 when he made his claim and ends when the claim is determined.

7. I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction.

   ACCEPTED CONDITIONS

8. The applicant’s accepted conditions are Posttraumatic Stress Disorder, Ischaemic Heart Disease, Sensorineural Hearing Loss, Tinnitus, Alcohol Abuse/Dependency and Lumbar Spondylosis.

   CONSIDERATION

9. At the conclusion of the hearing the applicant was granted an adjournment to enable the production of more documentation. The applicant did not then make final submissions on the merits of his case and has indicated that he does not intend to make any final submissions.

10. I will consider the case that is put forward by the applicant having regard to the applicant’s Statement of Facts, Issues and Contentions dated 20 April 2015.[1] In that document the applicant has squarely raised the following contentions:

    (i)     “The applicant maintains that had he not been suffering from his war caused conditions he would have continued to work and would not be suffering from a loss of salary, wages or earnings” at para 18; and

    (ii)    ”The applicant refers to and relies on the statement of the Applicant dated 7 November 2014 with which he attached a variety of documentation confirming that he genuinely sought remunerative work” at para 20.

    In these reasons I will outline my conclusions upon these contentions which were also put forward in the opening of the applicant.

    [1]           Cf.,Repatriation Commission v Warren [2008] FCAFC 64 at [92] per Logan J.

11. I have to determine whether the applicant is eligible for a pension at special rate. The applicant applied to the respondent to have his pension increased in accordance with s 24 of the Act, which provides for a "[s]pecial rate of pension" to be paid where the applicant would satisfy certain criteria. There is no issue that the applicant satisfies s 24(1)(aa) or s 24(1)(b) of the Act.

12. The one criteria in contention is (often referred to as the “alone” test) in s 24(1)(c) of the Act that "the veteran is, by reason of incapacity from ... war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…" 

13. Recently, in Repatriation Commission v Watkins,[2]  the Full Court of the Federal Court of Australia referred to decisions of Repatriation Commission v Richmond,[3] Repatriation Commission v Hendy[4] and Repatriation Commission v Butcher[5] and reaffirmed the settled principle that

    “if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied”.[6]   

    [2] [2015] FCAFC 10.

    [3] (2014) 226 FCR 21.

    [4] (2002) 76 ALD 47.

    [5] (2007) 94 ALD 364.

    [6] [2015] FCAFC 10 at paragraph [41].

14. The last remunerative work that was disclosed by the applicant in the employment history in his claim form was his work at the labour hire company. The evidence before the VRB was that the applicant sold his home in Springwood in September 2009 and took leave from his employer in October 2009 and moved to Queensland. In giving evidence before this Tribunal the applicant outlined the reasons why he decided to sell up in Sydney and move to Queensland. The applicant explained:

    Well, as I put in my statement, our marriage was in severe difficulties by that stage.  I figured that maybe if we – there was a lot of background in my behaviours around the place in like going to the local tavern all the time.  I quite often wound up in arguments in the local tavern with people.  The result of that flowed sort of into the community, which I didn’t really think about at the time but it’s since come to pass that it also had a great effect on my wife’s social life as well ... People – in our area, you know, people knew and my wife felt that friends were starting to really drift away from us.  So, taking these things into consideration, I thought we may be better to just leave this all behind and go somewhere else and make a – try and make a new start.

15. The applicant in giving evidence stated that he told the CEO of his employer that he was selling his house and moving to Queensland and asked the CEO whether he was expected to resign. The applicant asserts that he was informed that he was not expected to resign but was informed that a place could be found for him in one of the Queensland organisations of the employer. The applicant stated that his employment was terminated; the reason for termination on the employment separation certificate was that he had relocated interstate.[7] The supplementary statement of the Applicant details jobs that he said he applied for in Queensland even before he left the employ of the labour hire company.[8] 

    [7]           Exhibit L.

    [8]           Exhibit C, Attachment JA-3.

16. There is no evidence before me upon which I can be reasonably satisfied that the accepted conditions of the applicant played any part in contributing to preventing the applicant from engaging in remunerative work at the time when he left the employment of the labour hire company. Prior to leaving that employment the applicant had been working a 37.5-hour week; on some occasions he stated that he could work 60 or 70 hours a week. A payslip summary submitted for the payment of Service Pension Bonus dated 25 February 2010 indicates that the applicant worked an average of more than 40 hours a week in the two year period before he ceased employment in 2009. He took a total of 72 hours sick leave in the two year period and after taking leave to move interstate had a substantial amount of recreation and sick leave entitlement outstanding.[9]

    [9]           Exhibit I.

17. There is contemporaneous evidence from Dr Subhas, a consultant psychiatrist, who reported on 21 September 2009 that the applicant was “keen to continue in employment, which I have encouraged him to do”. That report of Dr Subhas causes me to place no weight upon the assertion of the applicant in his statement of 29 August 2014 that by September 2009 (which is the same month in which Dr Subhas wrote his report) the applicant could not concentrate on his work. At that time, Dr Subhas stated that, “with ongoing support, the applicant should be able to continue in employment a little longer”. In reliance on that contemporaneous medical evidence I make the finding that on

    
    

    21 September 2009 the applicant was able to continue in his employment. There is no medical evidence that his condition deteriorated after that date. There is no cogent evidence that the applicant was prevented from continuing to undertake remunerative work in October 2009 when he moved to Queensland or in December 2009 when his employment was terminated.

18. Whilst the applicant contends that his orthopaedic conditions, including “drop-foot”, played a role in his decision to move to Queensland there is no medical evidence that this was in fact the case. Dr Subhas in his report of 21 September 2009 does not refer to any condition which then prevented the applicant from working. I appreciate that a work colleague refers to the orthopaedic difficulties experienced by the veteran; however, I do not consider that he is in a position to give cogent evidence concerning the orthopaedic difficulties of the applicant.

19. There was evidence that the applicant had made applications to employers in Queensland when he was still employed: this is not consistent with his contention that he expected that his employer would find work for him in Queensland. The tenor of the evidence of the applicant was that his decision to move to Queensland was strongly influenced by his wife who wished to move away from their locality for essentially social reasons, they wanted to make “a fresh start”.

20. I have concluded, in accordance with the decisions of the Federal Court of Australia that bind me[10] that the “alone” requirement is not satisfied because non war-caused factors being what I have earlier referred to as social reasons have contributed to the decision of the applicant to move to Queensland.

    [10] See [13] of these reasons.

21. I am not reasonably satisfied that the applicant satisfies the “alone” test in s 24(1)(c) of the Act. This is because the applicant moved to Queensland because of social reasons. There is no cogent evidence that the applicant had to cease work for medical reasons. There is contemporaneous evidence from the report of Dr Subhas which indicates that shortly before his move to Queensland the applicant was keen to continue work.

22. I am not reasonably satisfied that any of the accepted conditions of the applicant prevented the applicant from continuing to undertake remunerative work with the labour hire company. On my assessment of the evidence, the reason why the applicant ceased his remunerative work was the fact (as evidenced on the Employment Separation Certificate dated 14 December 2009)[11]  that he left the location of his Sydney-based employer to move to Queensland. At that time the applicant stated that the workshop of the company was located at St Mary’s and then moved to Port Botany. The fact that he sold his home before his move to Queensland is consistent with what is referred to in labour law as a termination of the employment contract by abandonment, whereby an employer is reasonably entitled to conclude that an employee no longer intends to be bound by the contract.[12]

    [11]          Exhibit L.

    [12]          Creighton, B and Stewart, A, Labour Law (5^th ed, The Federation Press, 2010) p 601, para [18.48].

23. While the applicant did not make a claim for payment of the intermediate rate of pension, the applicant would also not be entitled to pension at that rate as I am not reasonably satisfied that he satisfies the requirements of the “alone” test in s 23(1)(c) of the Act which requires that a veteran was, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking.

24. The applicant satisfies s 24(1)(aab) of the Act in that he had not yet turned 65 years of age when he made his claim. This has the consequence that I should consider the amelioratingprovision of s 24(2) of the Act. However, to satisfy this provision the applicant must satisfy the Commission that he has been genuinely seeking to engage in remunerative work.[13] There are inconsistent accounts from the applicant concerning his search for remunerative work which cause me to place no weight on these accounts.

    [13]          Section 24(2)(b) of the Act.

25. The applicant, in his supplementary statement dated 7 November 2014, asserts that he had made applications to employers in Queensland from November 2009 until May 2011.[14] However, it was not until December 2009 that the applicant states that his employment was terminated and he expected to be employed by the company. I will outline some inconsistencies that cause me concern. There is an inconsistency in his account of events in that the list of potential employers contacted by the applicant, which was placed before the VRB,[15] differs markedly from the list of employers in his supplementary statement dated 7 November 2014.[16] The supplementary statement of the applicant refers to an application that was sent to Careers Australia on 7 December 2009 for a trade teaching position that was not disclosed in the list provided to the VRB. That supplementary statement also refers to a resume sent on 6 January 2010 to Manpower, a company that deals in mechanical work, civil work and warehousing that was not disclosed to the VRB. The supplementary statement refers to an event on 11 January 2010 when the applicant asserted that he handed in his resume to the Workpac office in Southport; this event was not disclosed in the list provided to the VRB which was informed that he gave that office his resume on 29 January 2010. The applicant also informed the VRB that on 29 January 2010 he made applications to two employment companies (Rexco People and Ranstad Industrial) that are not listed in his supplementary statement.

    [14]          Exhibit C, Attachment JA-3

    [15]          Section 37 documents (Exhibit A), page 76 (formerly page 43).

    [16]          Exhibit C, Attachment JA-3.

26. After my review of the evidence I am not reasonably satisfied that the applicant was genuinely seeking to engage in remunerative work during the assessment period. I am mindful that soon after the applicant arrived in Queensland he made an application for the service pension as well as pension bonus which were granted in about March 2010. In these circumstances I am not reasonably satisfied that the applicant would seek employment after he qualified for the service pension which is subject to an income test.  

1. The applicant has particularly relied upon an application that he made in May 2011 as a security guide or usher as being satisfaction of the amelioratingprovision in
   s 24(2) of the Act. However, by the time that he applied for the position he was on a service pension which had been granted in about March 2010. He stated that his accepted conditions were getting worse in regards to his orthopaedic conditions and his ability to control his temper. This was a position for which the applicant would require a security clearance. The Full Court of the Federal Court of Australia in Repatriation Commission v Hendy emphasised the task that this Tribunal should undertake:

   The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past.[17]

   I am not reasonably satisfied having regard to s 28(b) of the Act that work as a guide or usher which required a security clearance is something that the applicant as a tradesman would have done during the assessment period.

   [17] (2002) 76 ALD 47 at paragraph [36].

2. On my assessment of the evidence I cannot be reasonably satisfied that the applicant has satisfied the ameliorating provision of s 24(2) of the Act.

3. I am required to consider the application in accordance with ss 19(5A), (5B), (5C) and (5D) (see ss 19(3)(b) and ss 19(4A)) and to determine the application under s 19 (5D) (see ss 19(1)(c) and 19(3)(b)). Having regard to the circumstances of this case, I am required to consider the entitlement of the applicant to a benefit even though such a benefit has not been claimed by the applicant. I am also mindful that I have to consider the entitlement of the applicant through the whole of the assessment period.

4. At the time when the delegate made the decision the applicant was not of an age which entitled him to the Extreme Disablement Adjustment. The applicant has not made a claim for this benefit. The applicant is now of an age that he satisfies s 22(4)(b) of the Act. The applicant also satisfies s 22(4)(d) of the Act as he is not entitled to a pension under ss 23 or 24 of the Act. There is also no evidence that suggests the applicant is entitled to a pension under s 25 of the Act. The applicant will be entitled to the Extreme Disablement Adjustment provided that he satisfies s 22(4)(c) of the Act which requires the applicant to have an impairment rating of at least 70 points and a lifestyle rating of six points as determined under the approved Guide to the Assessment of Rates of Veterans’ Pensions.

5. The evidence suggests that there has been a deterioration of the accepted orthopaedic conditions of the applicant after he made his claim. This is because in April 2013 the applicant had a surgical procedure on his back. The more appropriate and economical course of action is for this application to be remitted to the respondent to determine whether the applicant is now entitled to the Extreme Disablement Adjustment. This would require an assessment of all of the accepted conditions of the applicant. This would give the applicant the opportunity to make submissions on whether he satisfies s 22(4)(c) of the Act. If the applicant is entitled to the Extreme Disablement Adjustment, that benefit is only payable from when the applicant satisfies s 22(4)(b) of the Act.

   DECISION

6. The Tribunal affirms the decision under review insofar as that decision determined that the applicant was not eligible for pension at the special rate and remits to the respondent the question of whether the applicant is entitled to the Extreme Disablement Adjustment rate of pension provided for in s 22(4) of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated 29 January 2016

Date of hearing	8 May 2015
Date final submissions received	7 December 2015
Counsel for the Applicant	Mr P Van Grinsven
Solicitors for the Applicant	KCI Lawyers
Advocate for the Respondent	Mr B Williams, Department of Veterans' Affairs