Barry Lamp and Repatriation Commission
[2014] AATA 506
[2014] AATA 506
Division VETERANS' APPEALS DIVISION File Number
2013/0538
Re
Barry Lamp
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Senior Member N A ManettaDate 25 July 2014 Place Adelaide The decision under review is varied so as to provide that Mr Lamp is eligible to receive pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 from 13 December 2010.
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Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special rate - Whether "alone test" satisfied - Decision under review varied.
LEGISLATION
Veterans' Entitlements Act 1986, s 24
CASES
Richmond v Repatriation Commission [2014] FCA 272
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
Deputy President K Bean
Senior Member N A Manetta25 July 2014
The applicant, Mr Lamp, served in the Royal Australian Navy from 1962 to 1982, with his service including operational service for various periods in 1966. He now suffers from a number of medical conditions which have been accepted as being war-caused, including thoracic and lumbar spondylosis.
On 13 March 2009, Mr Lamp lodged an application for an increase in his disability pension.[1] The Repatriation Commission (the Commission) decided to increase Mr Lamp’s pension to 100% of the general rate, but in doing so found that he was not eligible for a pension at the special or intermediate rates.[2]
[1] Exhibit 1, T4/19.
[2] Exhibit 1, T5/34.
In October 2009, Mr Lamp sought review of the Commission’s decision “not [to] consider special rate”, which was affirmed by the Veterans’ Review Board (VRB) on 26 November 2012.[3]
[3] Exhibit 1, T6/50 and T2/6. Mr Lamp’s application for review of the Commission’s decision dated 9 September 2009 was received by the Department of Veterans’ Affairs on 19 October 2009 and the appeal was registered by the VRB on 21 December 2009. The VRB hearing held on 30 April 2012 was adjourned under s 151 of the Veterans’ Entitlements Act 1986 to enable Mr Lamp to seek advice from an advocate, and the VRB’s decision on the application for review was subsequently made on 26 November 2012.
On 6 February 2013, Mr Lamp lodged an application for review by this Tribunal of the decision of the Commission (as affirmed by the VRB), giving rise to these proceedings.[4]
[4] Exhibit 1, T1/3.
LEGISLATION AND ISSUES
In order to establish that he is entitled to the special rate of pension, Mr Lamp must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Lamp first lodged his application for an increase in pension on 19 October 2009, and the date of this Tribunal’s decision.[5]
[5] VE Act, subs 19(9).
Section 24 of the VE Act relevantly provides as follows:
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.
There is no dispute between the parties that the conditions suffered by Mr Lamp and which have been accepted as war-caused are:
(a)thoracic spondylosis;
(b)lumbar spondylosis;
(c)depressive disorder;
(d)bilateral sensorineural hearing loss;
(e)hypertension; and
(f)ischaemic heart disease.
There is also no dispute between the parties that Mr Lamp satisfies ss 24(1)(aa), (aab), (a), (b) and (d) of the VE Act, and we accept that he satisfies those provisions. Mr Crowe, who appeared as advocate for the respondent at the hearing, further conceded that Mr Lamp satisfied the “loss” limb of s 24(1)(c), as he was suffering a loss of wages that he would not be suffering if he was free of his war-caused incapacity, and we also regard that concession as having been properly made. However, Mr Crowe contended that Mr Lamp did not satisfy the “alone” test prescribed by s 24(1)(c).
It follows that the question before us is whether Mr Lamp satisfied the “alone” test at any time during the assessment period. In order to answer that question, we must address each of the following issues:
(a)What was the remunerative work that Mr Lamp had been undertaking?; and
(b)Whether, by reason of his war-caused incapacity alone, Mr Lamp has been prevented from continuing to undertake that work?
We propose to address each of those issues in turn, having regard to the evidence and the parties’ contentions.
WHAT WAS THE REMUNERATIVE WORK THAT MR LAMP WAS UNDERTAKING?
In his statement and oral evidence, Mr Lamp explained that upon his discharge from the Royal Australian Navy, he commenced work at the Prince of Wales Hotel in Adelaide, which he ran together with two other ex-servicemen for three and a half years. He then ran the Barossa Brauhaus Hotel at Angaston in the Barossa Valley with his wife for six years, before doing some “vineyard work” and also working as a labourer at two abattoirs. He subsequently returned to working as a barman and later an assistant manager at the Angas Park Hotel in Nuriootpa for approximately three and a half years. After leaving the Angas Park Hotel, Mr Lamp worked at the Vine Inn Community Hotel for 12 months, and later at the Angaston Hotel for 15 months. He gave evidence that since 2008, he had worked as a fruit-picker at a vineyard, and in September 2010, obtained work as a barman at the rural Blanchetown Hotel, where he worked for three months on a trial basis, before ceasing that work in December 2010.
Accordingly, we find that the remunerative work which Mr Lamp was undertaking was:
(a)working as a barman;
(b)managing/assisting with management of hotels (bars);
(c)working as a labourer in abattoirs; and
(d)picking fruit in vineyards.
Having identified the work undertaken by Mr Lamp, we will now turn to the reasons for his being prevented from continuing to undertake that work.
WAS MR LAMP PREVENTED, BY HIS ACCEPTED DISABILITIES ALONE, FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
Mr Crowe contended that Mr Lamp did not cease remunerative work by reason of his accepted disabilities alone, as his age was a contributing factor to his cessation of work. As we understand his submissions, Mr Crowe did not dispute the proposition that Mr Lamp was prevented, by his war-caused disabilities alone, from continuing to undertake the types of remunerative work he had previously undertaken, apart from work as a barman. In respect of his work as a barman however, Mr Crowe contended that Mr Lamp’s age was a contributing factor to the cessation of his last paid work for the Blanchtown Hotel, and therefore he did not satisfy the “alone” test.
In support of this contention, Mr Crowe relied on a statement prepared by Mr Lamp for the purposes of the VRB proceedings, in which he alluded to his age and his eligibility for service pension.[6] Mr Crowe also referred to a lifestyle questionnaire completed by Mr Lamp in 2009 in which he stated “[a]t age sixty three I feel older and more tired of life than I should.”[7]
[6] Exhibit 1, T32/197.
[7] Exhibit 1, T26/183.
Mr Crowe acknowledged that Mr Lamp had continued to work past the qualifying age for service pension, but maintained that this did not remove the likelihood that age was a factor in his ceasing work in December 2010. In particular, he submitted that with increasing age Mr Lamp’s ability to work as a barman had been hindered by changes in the hotel environment which Mr Lamp had struggled to accept.
Mr Crowe also pointed out that Mr Lamp had not consulted his doctor prior to or after ceasing work at the Blanchetown Hotel, and had not given consideration to whether medication might help with his back pain. In addition, Mr Lamp did not speak with the manager of the hotel, Mr Hailstone, about reducing the physical requirements of his job.
Mr Crowe submitted that if Mr Lamp was in fact happy at the Blanchetown Hotel, he would have made efforts to continue working there. He also relied on the following passage of the decision of Justice Nicholson of the Federal Court in Forbes v Repatriation Commission (2000) 101 FCR 50:
40. 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 … .
However, Mr Lamp’s evidence was that he ceased work at the Blanchetown Hotel at the end of the trial period because he was not coping with the heavy workload, which required him to move kegs, unload vehicles, and transfer packaged beer from the storeroom to the bar area. He said that these activities caused him ongoing back pain, which in turn resulted in difficulties sleeping.
In his oral evidence, Mr Lamp acknowledged that he had made some comments about changes to the hotel environment in his 2002 Lifestyle Questionnaire form.[8] He added that a 66-year-old man is “rarely” seen working in a bar these days, as hotels now tend to employ young university students on a casual basis. He also mentioned that young women would now drink heavily after work. However, we note that Mr Lamp made these comments in the context of claim forms he completed in 2002, shortly after he had ceased working at the Angas Park Hotel in Nuriootpa. Whilst Mr Crowe submitted that it was “strongly implicit” that those factors also applied to Mr Lamp’s time at the Blanchetown Hotel, there is no evidence that they were a factor which contributed to him ceasing that work, and Mr Lamp gave evidence to the effect that he found working there “enjoyable”.
[8] Exhibit 1, T12/82-83.
The manager of the Blanchetown Hotel, Mr Trevor Hailstone, also gave evidence at the hearing. He explained that he was happy with the work that Mr Lamp had been doing by the end of his three-month trial period, but that Mr Lamp had intimated he would not be able to continue doing the job properly because he was unable to handle the physical requirements of the job, such as heavy lifting. Mr Hailstone confirmed that there was an expectation that male staff would help with any lifting, and that at the relevant time the hotel was short-staffed, such that it was unlikely that modified duties could have been made available to Mr Lamp.
We are accordingly satisfied on the evidence that, although he made an attempt to do them, the nature of the duties required of a male barman at the Blanchetown Hotel, in combination with his accepted back condition, meant that it was not viable for Mr Lamp to continue to undertake those duties. We are also satisfied that he is likely to have faced a similar situation if he had attempted to undertake work as a barman at another hotel. Whilst we have taken into account the fact that Mr Lamp did not specifically consult his doctor about the use of medication or ask Mr Hailstone about the availability of modified duties, this has not affected our conclusion, as we accept that it was not viable for Mr Lamp to continue with this work having regard to his back condition. For abundant clarity, we are satisfied on the evidence that even if he had explored the use of medication and/or modified duties, this is unlikely to have had the result of enabling Mr Lamp to continue working as a barman.
In light of the evidence, we have also concluded that we are not satisfied that Mr Lamp’s age contributed to his inability to continue to undertake work as a barman at the Blanchetown Hotel. Whilst we acknowledge the comments about the changing nature of hotels made by Mr Lamp, Mr Lamp did not indicate or accept that this was a factor in his ceasing work in December 2010, and there was no suggestion in Mr Hailstone’s evidence that Mr Lamp was exhibiting any difficulties within the hotel environment during his time at the Blanchetown Hotel. On the contrary, Mr Hailstone described the working relationship as “amicable”, and confirmed that he would have kept Mr Lamp on subject to his being physically able to do the job.
We are accordingly satisfied that Mr Lamp’s war-caused back condition was in effect the only reason he was unable to continue working at the Blanchetown Hotel, and therefore the only reason he was unable to continue to undertake the remunerative work he was previously undertaking as a barman.
For completeness we should acknowledge that there was some discussion at the hearing about the recent decision of her Honour Justice Dodds-Streeton in Richmond v Repatriation Commission [2014] FCA 272, in which her Honour concluded that in order to defeat a veteran’s entitlement to special rate, a non war-caused factor must have a “hindering or disabling”[9] effect on a veteran’s ability to continue to work. We note that decision is now the subject of an appeal to the Full Court. In these circumstances, we should indicate that on the approach endorsed in the earlier decisions of Forbes and Repatriation Commission v Hendy (2002) 76 ALD 47[10], we consider that Mr Lamp satisfies the test for payment of pension at the special rate. In other words, we do not consider that age contributed to the “preventative effect” referred to in Forbes, or that it made a contribution to Mr Lamp ceasing work of the kind outlined in Hendy.
[9] At [119].
[10] At [37].
Accordingly, on the evidence before us, we find that Mr Lamp was prevented from continuing to undertake the remunerative work that he was previously undertaking, by reason of his war-caused incapacity alone, and he is therefore entitled to receive disability pension at the special rate. We consider that Mr Lamp is entitled to pension at the special rate from 13 December 2010, being the day after his last day of work at the Blanchetown Hotel.[11]
[11] Exhibit 5.
DECISION
The decision under review is varied so as to provide that Mr Lamp is eligible to receive pension at the special rate provided for in s 24 of the VE Act from 13 December 2010.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean, Senior Member N A Manetta ....... [Sgd] ....................................
Associate
Dated 25 July 2014
Date of hearing 7 April 2014 Counsel for the Applicant Mr C Swan Solicitors for the Applicant Swan Family Lawyers Advocate for the Respondent Mr A Crowe
Solicitors for the Respondent
Advocacy and Litigation Section
Department of Veterans' Affairs
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