Bell and Repatriation Commission
[2005] AATA 717
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 717
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/444
VETERANS’ APPEALS DIVISION ) Re TREVOR CHARLES BELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member McCabe Date 29 July 2005
Place Brisbane
Decision The Tribunal affirms the decision under review. The applicant is unable to satisfy the “alone test” embodied in s 24(1)(c) of the Veterans’ Entitlements Act 1986. He is not entitled to a service pension at the special rate. ...............[Sgd]...............................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s Entitlements – application for special rate pension – applicant unable to satisfy the “alone” test – decision under review affirmed.
Veterans’ Entitlements Act 1986 s24
Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93; BC9705934
Repatriation Commission v Buckingham, Federal Court of Australia, 7 February 1996, 37/1996
REASONS FOR DECISION
29 July 2005 Senior Member B J McCabe Introduction
1. Mr Trevor Charles Bell applied for disability pension under the Veterans’ Entitlements Act 1986 (the Act) on 30 July 2003. He was awarded a pension paid at 100% of the general rate. He says he should be paid at the special rate. The respondent disagrees. On 12 May 2004 the Veteran’s Review Board affirmed the decision of the Repatriation Commission to pay Mr Bell 100% of the general rate. Mr Bell now asks the Tribunal to consider his claim.
2. To receive the special rate of pension Mr Bell must satisfy the criteria set out in s 24 of the Act. The respondent concedes the elements of s 24(1) are satisfied apart from subsection (c). The issue before the Tribunal is whether Mr Bell satisfies s 24 of the Act by virtue of s24(1)(c) or s24(2)(b).
3. Mr Bell does not satisfy the “alone test” encompassed in s24(1)(c). He is not entitled to take advantage of the ameliorating provision in s 24(2)(b). I have explained the reasons for my conclusion below.
The material before the Tribunal
4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:
·Statement of the applicant dated 12 January 2005 detailing the applicant’s work history (exhibit 2);
·Applicant’s reply to the respondent’s statement of issues dated 12 January 2005 (exhibit 3);
·A bundle of documents including a document headed “Relative Information” and letters of Drs Thomas, Czislowski, Hill, and Lewis (exhibit 4);
·Report of Dr Archer dated 16 February 2005 (exhibit 5);
·Report of Dr Vecchio dated 30 October 2004 (exhibit 6);
·Bundle of documents including various reports of Dr Grant (exhibit 7); and
·Medical Impairment Assessment forms for various conditions (exhibit 8).
5. Mr Bell gave evidence on his behalf. Both parties tendered submissions after the hearing.
6. Mr Bell was unrepresented at the hearing. Mr Stoner represented the respondent.
The background
7. Mr Bell served in the Army and had operational service with the Far East Strategic Reserve during the period 25 September 1957 to 18 October 1959. The applicant suffered from a number of war-caused injuries. Sometime later Mr Bell joined the civilian workforce after leaving defence service.
8. In the 1970’s Mr Bell worked in various positions in Papua New Guinea (PNG). He initially worked on a rubber plantation managing an experimental station growing crops. He was subsequently employed by the Department of Primary Industry and Fisheries to teach at the agricultural college in the region. Mr Bell also assisted the development of the fishing industry in PNG. That work involved shipbuilding and other manual labour. He was offered a further 4 year contract in or about 1985 but declined to take it up. Mr Bell felt unable to continue working due to his physical disabilities. He said his spine and hips caused him problems in the mornings. In evidence Mr Bell stated (Transcript p15 at 28-30):
“…by ’85 I was completely worn out. I was stuffed, absolutely worn out. I was rolling out of bed in the mornings, that was it. They offered me another 4 year contract and I just couldn’t carry on.”
9. Mr Bell returned to Australia from PNG in January 1985. He had difficulty obtaining a job and received unemployment benefits. He made unsuccessful applications for employment at various institutions including the Department of Primary Industries and Fisheries, the Department of Aboriginal Affairs and Wild World – a Tropical Zoo in Cairns.
10. At that time Mr Bell experienced several family problems. Most seriously, his wife was diagnosed with throat cancer. He moved to Brisbane for 4 months while his wife received radium treatment. While in Brisbane Mr Bell maintained weekly contact with the then CES in Fortitude Valley. He returned to Cairns where his wife recovered.
11. In 1986 Mr Bell successfully applied for a service pension from the Department of Veterans’ Affairs. Mr and Mrs Bell then moved to Cooktown to look after an old army friend’s house while he was on holiday. Mr Bell applied for work in Cooktown but had difficulty obtaining a position. He said Cooktown was home to about 1200 people and most jobs required you to be fit and well trained. Mr Bell went on to explain that the job market in Cooktown was deteriorating. He noted that even the local high school was affected: it no longer offered classes in years 11 and 12. He was eventually offered a position as caretaker of the Cooktown Turf Club. He said he got the job at the Turf Club through a friend’s wife.
12. As caretaker of the Cooktown Turf Club Mr Bell was responsible for slashing 42 acres of grass. He said while there were only two official race meets per year there were other times the track was used by horses on training circuits. The Turf Club regularly hosted weddings and other functions that required ground maintenance work. The applicant said the job was flexible and allowed him to work when he felt up to the task. Eventually the job became a burden because of his physical condition. The applicant said he even had difficulty getting on a tractor, so he resigned in 1998.
13. The Cooktown Turf Club provided Mr Bell with a modest one bedroom fibro caretakers’ dwelling. Mr Bell had to complete the half-built building upon his arrival. The Turf Club paid for the materials used to finish the dwelling. The dwelling was connected to the Turf Club’s power supply and phone line. The applicant did not pay council rates or outgoings of any kind.
14. I note the ameliorating provision of s 24(2)(b) was not relied upon at hearing. No evidence was raised indicating the applicant sought to re-enter the workforce after resigning from the Turf Club.
15. At the time of this application Mr Bell was 64 years and 9 months of age. He had been out of the workforce for 5 years.
The medical evidence
16. The Tribunal was supplied with medical reports from Drs Thomas, Hill, Lewis, Grant, Archer and Vecchio.
17. The applicant was referred to Dr Thomas by Dr Bernays. Dr Thomas has seen Mr Bell for various orthopaedic problems since 1985. In his report of 15 May 1985 (exhibit 4), Dr Thomas said the applicant’s x-rays indicated the lower three lumbar disc bases were wearing out quickly, especially in the lumbar sacral area. The Repatriation Commission subsequently accepted lumbar spondylosis on 4 September 2003 along with osteoarthrosis of the right and left knee and left hip.
18. Dr Thomas opined that Mr Bell has been totally and permanently incapacitated since 1998 because of his orthopaedic problems. Dr Thomas replaced the applicant’s right hip in 1996 and his left hip in 1997.
19. Dr Hill examined the applicant at the Cooktown Medical Centre where Dr Hill has practised since 1987. Dr Hill was of the view Mr Bell has not been able to work in any capacity since 1998 due to his severe osteoarthrosis (letter dated 15 October 2003 – exhibit 4).
20. Dr Lewis took x-rays of the applicant’s spine on 7 July 2003. He found multi-level disc degeneration with disc herniation and spinal stenosis at L1-L2, L3-L4, L4‑L5. He also noted foraminal narrowing. Dr Lewis did not comment on the cause or implications of his findings.
21. Dr Archer saw the applicant at the Far North Queensland Neurodiagnostic Unit. His report was tendered as exhibit 5. He concluded the applicant’s test results were consistent with severe peripheral sensory motor neuropathy. He believed this was due to a combination of diabetes and alcohol excess. He noted the applicant’s back pain was likely due to lumbar degenerative disease and his hip pain being multifactorial.
22. Dr Grant is a Senior Medical Officer who works for the Department of Veterans’ Affairs. In formulating his view of the applicant’s symptoms he liaised with Drs Hill and Thomas. After consultation with those doctors he formed the view the applicant suffered generalised osteoarthrosis rather than specific osteoarthrosis (exhibit 7). He stated Mr Bell has a constitutional predilection to develop osteoarthrosis in most joints in his body that is most likely hereditary in nature. Dr Grant also noted Dr Hill’s comments in relation to the applicant’s accepted condition of post traumatic stress disorder contributing to his inability to work.
23. Dr Vecchio interviewed and examined Mr Bell on 29 October 2004. Dr Vecchio also diagnosed generalised osteoarthrosis of the axial skeleton including the neck, lumbar spine, shoulders, elbows, wrists, small joints of the fingers and in all likelihood the ankles as well. He concluded the applicant would be unable to perform any remunerative work due to his global disabilities (exhibit 6).
Consideration of the evidence
24. I accept the applicant’s account of his employment history. He experienced a full working life after leaving the service until 1985. He had difficulties getting work for a period after he returned to Australia. He worked in Cooktown until 1998. I note that on the applicant’s evidence the boat building and other endeavours the applicant undertook in PNG involved hard manual labour. I also note the applicant was unable to accept further offers of employment in PNG because of problems with his health.
25. Drs Thomas and Hill both opined the applicant was unable to work from 1998. Dr Grant consulted with Drs Thomas and Hill before he diagnosed the applicant with generalised osteoarthrosis rather than specific osteoarthrosis (exhibit 7).
26. Dr Vecchio opined the conditions preventing the applicant from undertaking remunerative work include the non-accepted conditions of osteoarthrosis of the upper limbs, osteoarthrosis of cervical spine and peripheral neuropathy (exhibit 6).
The legislation
27. The sole issue I must determine is whether the applicant satisfies s 24(1)(c) of the Act. The Repatriation Commission admitted s 24(1)(b) of the Act is satisfied at all material times. Subsections 24(1)(aa),(aab) & (a) are also satisfied.
28.The “alone test” is set out in s 24(1)(c) of the Act. It 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 of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…
29. The Full Federal Court explained the correct approach to the test in the course of its decision in Flentjar v Repatriation Commission (1997) 48 ALD 1. The Court explained (at 4-5) that the issues before the Tribunal were:
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?
30. At the hearing the respondent contended that the work the applicant undertook at the Cooktown Turf Club was not “remunerative work”. In submissions the respondent conceded that the work was remunerative work for the purposes of s24(1)(c): see Repatriation Commission v Buckingham, Federal Court of Australia, 7 February 1996, 37/1996.
31. Given the evidence of Drs Thomas and Hill, I am satisfied Mr Bell is unable to work for periods aggregating more than 8 hours per week due to his war-caused injuries. I am however unable to conclude that the applicant’s war-caused conditions are the only factors preventing him from undertaking remunerative work. While the applicant’s accepted conditions may have prevented him from undertaking remunerative work, the evidence of Drs Thomas, Hill, Archer, Grant and Vecchio suggests there are non-accepted conditions which also contribute to the applicant’s inability to work. Drs Grant and Vecchio say non-accepted forms of osteoarthrosis prevent the applicant from working. Dr Archer cites severe peripheral sensory motor neuropathy and lumbar degenerative disease. The job market in Cooktown is another obstacle to employment. On the applicant’s evidence obtaining employment in Cooktown was difficult, even for able-bodied workers of the applicant’s age and skill set. I am satisfied the applicant’s non‑accepted conditions and labour market conditions in Cooktown are additional factors preventing the applicant continuing remunerative work.
Conclusion
32. The decision under review is affirmed. The Tribunal finds the applicant did not cease remunerative work due to his war-caused injuries alone. The applicant is therefore not entitled to a pension at the special rate under s 24 of the Veterans Entitlements Act 1986.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.
Signed: .....................................................................................
Associate: Sam J AppletonDate of Hearing 8 March 2005
Date of Decision 29 July 2005The applicant appeared in person.
The respondent was represented by Mr Stoner, a departmental advocate.
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