Bamford and Repatriation Commission

[2008] AATA 289

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 289

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0936

VETERANS' APPEALS DIVISION		)
Re		TREVOR MAURICE BAMFORD

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal:  G. D. Friedman, Senior Member   

Date:4 April 2008

Place:Melbourne

Decision:

For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes a decision that

1.        chronic bronchitis and emphysema are war-caused with effect from 19 September 2005; and

2.        Mr Bamford is entitled to pension at the special rate with effect from 19 September 2005.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - special rate of pension - whether incapacity from war-caused injury ‘alone’ prevented the veteran from undertaking remunerative work

Veterans’ Entitlements Act 1986 ss 24(1)(c), 24(2)(a)

Banovich v Repatriation Commission (1986) 69 ALR 395

Cavell v Repatriation Commission (1988) 9 AAR 534

Conway v Repatriation Commission (2003) 37 AAR 486

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Van Heteren (2003) 75 ALD 703

REASONS FOR DECISION

4 April 2008  G.D. Friedman, Senior Member

1.      Trevor Bamford has applied for an increase in the rate of his disability pension.  He is currently receiving pension at 100 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate.  His last work was as a forklift driver.  This work was terminated in 1992, and Mr Bamford has not worked since.

2.      The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability.  The respondent says that Mr Bamford is not entitled to special rate because there were reasons other than his war-caused disabilities that account for him not working during the assessment period.

3.      The respondent has accepted that Mr Bamford’s conditions of post traumatic stress disorder (PTSD), alcohol dependence, gout, impotence, intervertebral disc prolapse at L3-L4, L5-S1, and C6-C7, cervical spondylosis and lumbar spondylosis arise from his war service.  At the beginning of the hearing the respondent advised that it had also accepted chronic bronchitis and emphysema as war-caused conditions.

ISSUE

4.      The issue before the Tribunal is whether Mr Bamford’s incapacity from war-caused conditions alone prevents him from working at least eight hours per week.

WHAT IS MR BAMFORD’S WAR SERVICE AND OCCUPATIONAL BACKGROUND?

5.      Mr Bamford said that he was born in February 1945 and left school at Year 10, when he commenced a carpentry apprenticeship before joining the Royal Australian Navy on 27 August 1962.  He was discharged on 23 April 1965 and his service with the Far East Strategic Reserve aboard HMAS Yarra from 28 May 1964 to 8 June 1964 was operational service under the Veterans’ Entitlements Act 1986.

6.      After leaving the navy he obtained employment as a truck driver for several months, then joined Ericsson as a technical officer and remained with the company for 21 years.  He then worked with Plessey and Siemens as a communications technician until he was made redundant in 1988, after which he worked on the wharves for 12 months.  Mr Bamford then found a permanent position with Gadsen as a forklift driver, and his employment was terminated in 1992 when he could no longer perform the physical requirements because of back, neck and other pain, and psychological issues plus alcohol problems.

7.      Mr Bamford told the Tribunal that he tried to obtain other employment and sought help from friends, but was unsuccessful because of his war-caused physical conditions and the effects of PTSD, which prevented him from concentrating for any length of time.  He said that he is only qualified to perform manual work, but that no employer will even give him a trial.  He said that he receives a service pension and disability pension at a rate less than he was receiving from his most recent employment.

8.        Dr R. Horsley, occupational physician, stated in a report dated 7 October 2005 (Exhibit R4) that Mr Bamford has a significant disability related to his cervical and lumbar spine.  She said that the physical demands of carpentry and joinery are beyond his capability, and that he is physically unfit to work as a communications technician or forklift driver.  Dr Horsley referred to his length of time out of the workforce, his educational background, manual working history and physical restrictions, and concluded that Mr Bamford is totally and permanently disabled.

9.        Dr Horsley gave evidence that, if Mr Bamford did not suffer from the accepted conditions, he might be able to obtain manual work as a handyman or doing odd jobs.  She said that work in the communications field has changed significantly and would be beyond his capacity without significant retraining.  His computer skills are minimal.

10.      Dr N. Strauss, consultant & occupational psychiatrist, stated in a report dated 20 October 2005 (Exhibit A1) that from a psychiatric point of view Mr Bamford is totally incapacitated because of debilitating psychiatric symptoms arising from service-related psychiatric problems.

WHAT IS THE LEGISLATIVE BACKGROUND?

11.      To qualify for a pension at the special rate a veteran must satisfy each of the criteria in s 24 of the Act.  The earliest date from which any increase may be made is the date of the application for review, in the present case 19 September 2005, and the assessment period is from that date until the date of the Tribunal’s decision.

12.      The respondent has conceded that the criteria of s 24(1) are satisfied except paragraph (c) which provides:

(1)       This section applies to a veteran if:

…

(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 earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…

13. Section 24(2)(a) of the Act provides:

(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;

DOES MR BAMFORD SATISFY SECTION 24(1)(c)?

14.      In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Federal Court described the test in s 24(1)(c) as:

(1) What was the relevant “remunerative work that the veteran was undertakin” 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 answer 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?

15.      In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J said that decisions regarding s 24(1)(c) should be made with an eye to reality and that common sense is the proper guide. This principle was supported in Forbes v Repatriation Commission (2000) 101 FCR 50.

16.      In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Federal Court stated at 402-3:

…the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity.

17.In Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court stated at 54-5:

The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work.  If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.  The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.

18.      In applying Mr Bamford’s circumstances to the Flentjar test, the answer to question one is manual work involved in employment as a communications technician or forklift driver, which is the most recent type of work performed by Mr Bamford since his discharge from the navy.  On the material available to the Tribunal the answer to question two is yes.

19.      In relation to question three the Tribunal takes into account the evidence from Mr Bamford, plus the evidence from Dr Horsley in relation to the effect of the accepted physical conditions, and from Dr Strauss about the accepted psychiatric condition on Mr Bamford’s ability to work.  In relation to the matters referred to in Hendy, although Mr Bamford has been out of the workforce since 1992, the Tribunal accepts Dr Horsley’s evidence that, if not for the accepted conditions, he would have the capability of performing some type of manual work.  The Tribunal finds that the war-caused conditions were the only factors preventing him from continuing to perform the type of work that he was undertaking, and the answer to question three is yes.

20.      In relation to question 4 the Tribunal is satisfied that Mr Bamford is suffering a loss of income that he would not be suffering if he did not have his accepted conditions, so the answer to question 4 is yes.

DOES MR BAMFORD SATISFY SECTION 24(2)(a)?

21.      In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J stated, in relation to s 24(2)(a)(i), at 709:

This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work.  It in fact presupposes that he or she may well not be: cf 24(1)(b).  And because of the deemed  ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.

22. The Tribunal accepts Mr Bamford’s evidence, supported by the medical evidence, that he ceased engaging in remunerative work because of his accepted physical and psychological conditions, and finds that he is not incapacitated or prevented from engaging in remunerative work for any other reason. Therefore Mr Bamford satisfies s 24(2)(a) of the Act.

23.      It follows that Mr Bamford satisfies the criteria for the grant of pension at the special rate.

DECISION

24.      For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes a decision that:

1.chronic bronchitis and emphysema are war-caused with effect from 19 September 2005; and

2.Mr Bamford is entitled to pension at the special rate with effect from 19 September 2005.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Dates of hearing:  29 January 2008, 4 April 2008

Date of decision:  4 April 2008

Advocate for the applicant:          Mr D. De Marchi

Solicitor for the applicant:            De Marchi & Associates

Advocate for the respondent:       Ms T. Chant

Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs