Ash and Repatriation Commission
[2010] AATA 987
•9 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 987
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2596
VETERANS' APPEALS DIVISION ) Re PETER ASH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Dr I Alexander, MemberDate9 December 2010
PlaceSydney
Decision The decision of the Veterans’ Review Board is set aside, and in substitution, the decision is that the Applicant satisfies all the requirements of s 24 of the Veterans’ Entitlement Act 1986 for receipt for a disability pension at the Special Rate.
....................[sgd]...................
The Hon. Brian Tamberlin, QC
Deputy President
CATCHWORDS
VETERANS ENTITLEMENTS- increase in disability pension from general rate to special rate- war-caused conditions- attempt to gain remunerative work- prevented from undertaking or continuing remunerative work by reason of war-caused conditions- the war-caused conditions are the only factor or factors preventing the veteran from continuing to undertake that work- loss of salary, wages or earnings- SET ASIDE.
LEGISLATION
Veterans’ Entitlement Act 1986
CASES
Flentjar v Repatriation Commission (1997) 48 ALD at 1 at 4-5
Starcevich v Repatriation Commission (1987) 18 FCR 221
Cavell v Repatriation Commission (1988) 9 AAR 534 at 539
Forbes v Repatriation Commission [2000] 101 FCR 50 at 57
Hornery and Repatriation Commission (1998)
Repatriation Commission v Sheehy (1995)
REASONS FOR DECISION
9 December 2010 The Hon. Brian Tamberlin, QC, Deputy President
and Dr I Alexander, Member1. This is an application by Mr Ash (the veteran) for review of a decision of the Veterans’ Review Board (the Board) dated 1 November 2006, which affirmed a decision that continued his disability pension at 100 per cent of the General Rate when he made an application for an increase in disability pension to Special Rate.
2. The relevant statutory position is s 24 of the Veterans’ Entitlement Act 1986 (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) either:
(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; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
3. It is common ground that the requirements of ss 24(1)(a) and (b) had been satisfied.
4. The assessment period in this case commenced on 27 March 2006 and concludes on the day of the Tribunal’s decision. The hearing before this Tribunal is a re-hearing on the merits of the application and the task of this Tribunal is to make the correct or preferable decision on the evidence before this Tribunal.
BACKGROUND
5. Mr Ash was born on 12 October 1944. He was under the age of 65 when he applied for an increase in his pension on 27 March 2006. He served in the Australian army and rendered eligible and operational service in accordance with the Act. Mr Ash rendered operational service from 3 December 1964 to 6 June 1965 and again from 14 September 1965 to 8 September 1966. His period of service from 7 December 1972 to 22 August 1985 is recognised as eligible defence service.
6. Mr Ash suffered incapacitations and injuries during service and the Respondent (the Commission) accepts that he is entitled to receive a disability pension with respect to cervical spondylosis, lumbar spondylosis, post traumatic stress disorder (PTSD), chronic obstructive airway disease, Grovers’ disease, bilateral sensorineural hearing loss and major depression. The Commission accepted Mr Ash’s claim for major depression on 29 September 2005, consequent to his application for an increase in his disability pension made on 2 August 2005. He was already receiving 100 per cent of the General Rate of pension and continues to receive this rate after acceptance of the further condition in September 2005.
7. On 27 March 2006, Mr Ash again lodged an application for increased pension. The Commission declined to increase his pension on 21 April 2006 and he continued to receive pension at 100 per cent of the General Rate. On 1 November 2006, the Board reviewed this decision and decided Mr Ash was not entitled to the Special Rate, which he was seeking. This decision was reviewed by this Tribunal, and in a decision of 8 May 2009, the Tribunal set aside the decision under review and substituted a decision that the Applicant satisfied all the requirements of s 24(1) of the Act for the receipt of the Special Rate of pension. This decision was set aside by consent and the application is again before the Tribunal for reconsideration.
EVIDENCE OF THE APPLICANT
8. During the hearing Mr Ash gave evidence that he spent 18 years as an engineer and, in the first six months while in training, he learnt to handle explosives and carry out mine warfare. He obtained a bomb disposal certificate and a quarry master’s certificate, which allows him to use explosives both military and civilian. He was then transferred from Engineers to stores; that is from being a field engineer to either clerical or stores work because of his accepted hearing incapacity. He said that he had to move out of field engineering because a technician working with explosives and having less than 50 per cent of his hearing capacity cannot properly carry out the work. He said he had had considerable experience as a quarry master at Lord Howe Island working with explosives. He said that when he took his redundancy after working in stores he moved to Armidale. He wanted to work in a mine, as that was the sort of work he would have been able to do, but that he could not do so because of his hearing. He said it would have been illegal to work with explosives in any form given his severe hearing incapacity. Before he moved to Armidale, he says he had been promised a position working with explosives, but when he moved to Armidale the South African company that had the mine decided to withdraw from the venture and it was in the process of being sold. He then became ill and his weight increased dramatically to 165kg.
9. By the time Mr Ash recovered from his illness, the mine had closed down completely. He said he was very confident, on moving to Armidale, that he would have been able to obtain work in explosives. He thought that his hearing disability could be a problem but he said that he had been approached and offered positions from time to time, working with explosives and on various tasks, including blowing up tree stumps on pasture land for graziers. He said that he was asked two or three times a month to do this work, but he appreciated it was illegal for him to go anywhere near explosives because of his hearing disability. Accordingly, he rejected those offers. He was confident that he could have made quite a good living out of it, but did not wish to work illegally. He said that it was necessary to have a ticket from the Department of Labour and Industry to allow him to work with explosives, but this had to be renewed every year and he failed the medical because of his hearing disability.
10. In 1999, when Mr Ash just moved to Armidale, he was asked to work on a farmer’s property. Shortly after, his health began to deteriorate. He said that someone last asked him if he wanted to do such work about a fortnight before the hearing. He was asked to move half a dozen or so tree stumps from a property.
11. Mr Ash explained to the Tribunal, in detail, how he would go about removing tree stumps on graziers’ land. In addition to his hearing, he said that one of the problems that would have prevented him from working with explosives between 2002 and 2007 was that he was mentally unstable to the point of attempting suicide in 2005. Thereafter, he went into St John of God Hospital at Windsor. He said he had been seeking administrative work after 1999 and that he had made some enquiries at a university, but this had not produced any result.
12. When asked whether he was interested in working he responded that there was ‘nothing in the world more boring than waking up, getting out of bed, looking forward to a day of doing nothing.’
13. His evidence is that, following the loss of weight from 160kg, he undertook to improve his health and the prospects of getting a job. He started to walk substantial distances.
14. He has a history of looking for work prior to 2006. For example, he tried to get work as a storeman or delivery person and this was unsuccessful. He also made an effort to get work in lawn maintenance. In 2003, he was a volunteer at St Vincent de Paul to see how he would fit into a work situation, but had difficulty getting on with the staff. In 2006, he made enquiries of a friend, who had started a business cleaning vents in hotels, cafés and restaurants, but his friend would not employ him due to his medical conditions. In early 2009, he asked a fencing contractor for work, although again, this was unsuccessful. Also in 2009, he called the office of Armidale newspaper and asked if they had any jobs. At the same time he went to Centrelink to see if they could find him work. In August 2009 he went to the ‘Jobs Australia’ office in Armidale to see if they had any work and in November 2007 he did a 3 day course and obtained a Senior First Aid certificate.
15. In 2009, he also endeavoured to get a job with a tomato growing business but was told that he would not be employed because of his incapacity. He says he made other attempts since moving to Armidale in 1999 but had difficulty remembering details or dates because of his disturbed mental state. He says that he has been to Coles and Woolworths supermarkets on various occasions looking for work stacking shelves or doing home deliveries, but those efforts were not successful. Attached to his statement of 22 February 2009, is correspondence evidencing his attempts to gain employment in 2009.
16. Mr Ash was cross-examined but his credibility was not in doubt. We accept his evidence and we are satisfied that Mr Ash has made genuine attempts to engage in remunerative work in the assessment period.
MEDICAL EVIDENCE
17. We find that at the time of his claim for increase in pension Mr Ash suffered from numerous accepted disabilities, both physical and psychological, associated with great impairment. The disabilities included cervical spondylosis, lumbar spondylosis, PTSD, major depression, chronic obstructive airways disease, Grover’s disease and bilateral sensorineural hearing. The relevant evidence was provided by two psychiatrists Doctors Dinnen and Roberts, and two occupational physicians, Doctors Chase and Rosenthal.
18. Dr Dinnen, in his report of 1 November 2007, expressed the opinion that the diagnosis of PTSD was unarguable and that the condition had progressed over the previous 10 years, so that Mr Ash at that time was suffering impairment. He indicated that Mr Ash would need to continue on his current medication indefinitely and would require continuing psychiatric care in the form of ongoing counselling and periodic review by a psychiatrist. He concluded that Mr Ash was not capable of continuing any form of employment because of his chronic psychiatric illness and also that he was not capable of working more than eight hours a week because of his accepted war-caused psychiatric condition, taking into account his skills, experience and qualifications.
19. Dr Dinnen added that Mr Ash’s psychiatric condition had probably affected his work capacity prior to his decision to accept the redundancy package in 1999.
20. Dr Roberts, in his written report of 30 May 2007, concluded that Mr Ash was unfit for work on physical, and not psychiatric, grounds. He based his conclusion on the opinion that Mr Ash did not suffer from PTSD but provided no useful assessment of his physical conditions as this was outside his area of expertise. The report of Dr Roberts does not assist in view of the fact that as Mr Ash had the accepted war-caused condition of PTSD.
21. Dr Rosenthal provided a written report dated 17 April 2007, and noted Mr Ash was significantly affected by PTSD, chronic obstructive airways disease, as well as lumbar and cervical spondylosis, and considered that these conditions prevented him from continuing with his normal employment. He concluded that Mr Ash was unable to work more than eight hours per week due to his accepted war-caused disabilities alone, and expressed the opinion that there were no non-accepted conditions affecting his ability to seek remunerative employment.
22. Dr Chase in his written report of 18 June 2007 considered that Mr Ash was unable to work solely because of his accepted war-caused disabilities. He also noted that Mr Ash did have other conditions that would provide him with “considerable difficulties” with respect to him engaging in paid employment, namely osteoarthritic changes in the left foot and very significant pathology in both shoulders. Nevertheless, his conclusion was that Mr Ash was significantly disabled because of his cervical and lumbar spondylosis and the PTSD. These alone were sufficient to prevent him from returning to paid employment. The Tribunal notes that Dr Chase made a supplementary report on 31 January 2008, but this does not vary his position.
23. It is the Tribunal’s view that the medical evidence before us clearly supports the conclusion that during the assessment period, Mr Ash was and remains totally and permanently incapacitated from his war-caused conditions and that these conditions render him incapable of working at all, let alone for periods aggregating more than eight hours per week.
LEGAL PRINCIPLES
24. The Full Court expressed the requirements of s 24(1)(c) of the Act in Flentjar v Repatriation Commission (1997) 48 ALD at 1 at 4-5 as being:
“…
1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of section 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?”
25. It is common ground in this case that reference in s 24(1)(c) to ‘work’ is a reference to the type of work in which the Applicant had engaged and not to his last form of employment or to a particular job with a particular employer: Starcevich v Repatriation Commission (1987) 18 FCR 221.
26. The word “alone” should not be substituted by other words in the absence of ambiguity. The requirement of the word “alone” as it appears in section 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service related incapacities and not to something else as well. This is a decision not to be made on “nice philosophical distinctions” but with an eye to reality and as a matter of common sense as the proper guide: see Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 per Burchett J.
27. In applying section 24(1)(c), any factor having employment consequences which played a part in the Applicant’s inability to work or obtain remunerative employment, is sufficient to displace the Applicant’s case for disability pension at the Special Rate.
28. The question of whether the veteran, by reason of war-caused conditions alone, has been prevented from undertaking or continuing remunerative work can only be answered by reference to all the circumstances in which the war-caused conditions exist.
29. In Forbes v Repatriation Commission [2000] 101 FCR 50 at 57 Nicholson J said:
“As in the case of the present applicant it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.”
30. In Hornery and Repatriation Commission (1998) a submission that s 24(2)(a) and (b) should be read conjunctively because they are separated by “and”, was rejected by the Tribunal. In Repatriation Commission v Sheehy (1995), Sackville J observed that, for a person under 65, the fact that such a person had not engaged in a particular kind of remunerative work did not, by itself, prevent the person from satisfying s 24(1)(c).
REASONING
31. The issue for determination is whether Mr Ash satisfies the requirements of s 24(1)(c) of the Act, read in conjunction with the provisions of s 24(2).
32. In order to decide this question, it is necessary to identify the type of remunerative work that Mr Ash was undertaking.
33. The decision-maker is not restricted to consideration of the precise work that the veteran was last undertaking; we can look at all the relevant work.
34. In the present case, the relevant remunerative work claimed is work using or relating to the use of explosives, which Mr Ash had last undertook in 1981.
35. Mr Ash submits that as a result of his war-caused deafness, he is prevented from carrying out that work because he requires a permit or ticket from the Department of Labour and Industry, which he cannot obtain because of his hearing incapacity, and therefore, he is suffering loss of salary or wages that he would not suffer if he did not have this and his other war-caused conditions.
36. We accept this submission. We are satisfied that Mr Ash is prevented by his war-caused conditions alone from undertaking this remunerative work. It is simply not possible because of his deafness for him to do this work.
37. We turn to consider the operation of s 24(2) of the Act.
38. In relation to s 24(2)(a)(i) of the Act we find that, as at the commencement of, and during the assessment period, Mr Ash was under 65 years and that he had ceased to engage in remunerative work.
39. As at 27 March 2006, he was not in fact working and therefore had ceased to engage in remunerative work. The reason he had ceased was due to a series of severe incapacitating and extensive war-caused conditions alone. In our view, on the medical evidence, Mr Ash had ceased work for no other reason than as a result of his war-caused conditions.
40. We further accept and find that, prior to and during the assessment period, Mr Ash wanted to work and had been genuinely seeking to engage in remunerative work, as noted in paragraph 14 and 15 above, because he had made a series of enquiries and efforts to seek out various forms of employment. These were simply not casual or tentative enquiries. He said, and we accept, that he was extremely dissatisfied with waking up each morning and having nothing to do.
41. We are also persuaded that his deafness, psychiatric condition and other war-caused incapacitating conditions are clearly the substantial cause of his inability to obtain remunerative work. These conditions, cumulatively, were such a significant disadvantage that he could not effectively function in any remunerative work during the assessment period.
42. Accordingly, we find that the requirements of s 24(2)(b) are satisfied in this case and that his application for review should be granted.
43. The application is granted. The decision of the Veterans’ Review Board is set aside, and the decision is that the Applicant satisfies all the requirements of s 24 of the Veterans’ Entitlement Act 1986 for receipt for a disability pension at the Special Rate.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President and Dr I Alexander, Member.
Signed: .....................................................................................
Bhavana Dhanasar, Associate.Date of Hearing 4 August 2010
Date of Decision 9 December 2010
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Mr G Isolani, KCI Lawyers
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Mr B May, Australian Government Solicitors
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