Boxsell and Repatriation Commission - [2007] AATA 1215

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1389

VETERANS’ APPEALS DIVISION )

Re

ALLAN BOXSELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Justice Tamberlin, Presidential Member

Mr Allen, Senior Member

Date13 April 2007
PlaceSydney

Decision
The decision under review is affirmed.

[Sgd] JUSTICE TAMBERLIN
……………………………………….
Presiding Member

CATCHWORDS
VETERANS’ AFFAIRS – veteran’s disabilities – war-caused lumbar spondylosis and ischaemic heart disease – assessment period for pension application – pension at General Rate or Special Rate – no “continuum” of circumstances in an assessment application.
Veterans’ Entitlement Act 1986 (Cth), ss19, 24(1), 24(2A), 196
Jebb v Repatriation Commission (1988) AAR 285
Rose v Repatriation Commission (2001) FCA 245
Clements v Repatriation Commission (1997) 49 ALD 798
REASONS FOR DECISION

13 April 2007 Justice Tamberlin, Presidential Member

Mr Allen, Senior Member

This is an application for review of a decision of the Repatriation Commission dated 1 August 2003 which decided that the veteran’s disability pension should remain at one hundred percent of the General Rate. This decision was affirmed by the Veterans’ Review Board on 18 August 2004. In her decision, the Commission delegate noted that on 18 June 2003 the Veterans’ Review Board had accepted that the veteran’s ischaemic heart disease was related to his service with effect from 18 June 2001 and referred the case to the Commission for assessment of the disability pension.
The Commission decision records that the rate of pension payable for accepted disabilities is assessed using a Guide to the Assessment of Rates of Veterans’ Pensions overall, whereby a medical impairment rating is combined with a life style rating to give a percentage degree of incapacity. If there is no eligibility for a higher rate of pension the degree of incapacity becomes that percentage of the General Rate Pension payable to the veteran.
On 30 August 1999 the veteran’s pension was assessed at 100 percent of the General Rate with effect from 11 March 1999. This is the maximum general rate of pension payable but the Commission must also consider whether payment can be made at a Special Rate to a veteran who is totally and permanently incapacitated for paid work of more than 8 hours per week solely due to service related incapacity. In order to qualify for this higher rate the veteran must be prevented from continuing paid work because of accepted disabilities alone and as a consequence be suffering loss of earnings.
Where a veteran is under 65 years of age and is not working but has been genuinely seeking work, the veteran will be considered to have been prevented from continuing paid work because of accepted disabilities if they are the cause for remaining out of the work force.
The Commission concluded that the applicant, Mr Allan Boxsell, was not eligible for pension at the Special Rate. This was on the basis of a finding that there was no evidence that he had been genuinely seeking employment since his retirement in July 1989. The Commission was satisfied that the accepted disabilities alone were not the cause for his remaining out of the work force but that factors such as age and incapacity deriving from non-service related disabilities also contributed the veteran remaining out of the work force. Accordingly, the Commission decided that the veteran was not eligible for payment at the Special Rate and that his pension should remain at 100 percent.
The issue for the Tribunal is whether the applicant is entitled to pension at the Special Rate.
In relation to a claim or application for a pension the “assessment period” is defined in s 19 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) to mean a period starting on the application day and ending when the claim or application is determined. Effectively, in the present case, the assessment period commenced on 18 September 2001 in respect of the claim for ischaemic heart disease and continues to the date of determination.
On 31 May 2006 the Department of Veterans’ Affairs accepted a claim by Mr Boxsell for lumbar spondylosis but continued the payments at 100 percent of the General Rate. While that decision is not before the Tribunal it is relevant to the arguments made before the Tribunal on this application. The assessment period in relation to the claim for lumbar spondylosis commenced on 14 November 2005 which was the date the claim was made and it continues to the date of determination.
Background
The veteran was born on 21 September 1940 and as at the application date in respect of heart disease he was 61 years of age and as at the date of his claim for lumbar spondylosis on 14 November 2005 he was over 65 years of age. These respective ages are significant because of the provisions of s 24 of the Act. That section relevantly provides:
Section 24 – 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 … 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.
…
(2A) This section applies to a veteran if:
(a)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
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and …” (Emphasis added.)
In the application received by the Department of Veterans’ Affairs on 18 September 2001, the claim for disability pension was in respect of the heart pains in the chest believed to have been caused by smoking whilst in service. The medical diagnosis in that application was coronary heart disease which was diagnosed on a coronary angiogram.
On 18 October 2001 the Veterans Affairs Department described the claim condition as being ischaemic heart disease and concluded that the circumstances of the case did not satisfy the Statement of Principles under s 196 of the Act issued in respect of ischaemic heart disease. However, on review by the Veterans Review Board, the Board determined that it was not satisfied beyond reasonable doubt that there was no sufficient ground for determining that the veteran’s ischaemic heart disease was war-caused. Accordingly, that condition was accepted with the decision that the Commonwealth was liable to pay a pension for incapacity arising from that condition and remitted the matter to the Commission for assessment of the rate at which the pension was to be paid.
The November 2005 application of Mr Boxsell in respect of lumbar spondylosis was not accepted as a war-caused disability until May 2006 but that decision took effect from 14 August 2005.
The contention for Mr Boxsell on this Review Application is that he is entitled to a pension at the Special Rate notwithstanding that he lodged his application for lumbar spondylosis after turning sixty-five years of age.
Submissions for Mr Boxsell
It was submitted for Mr Boxsell that following acceptance of his lumbar spondylosis as a war-caused disease he became entitled to a pension at the Special Rate from 14 August 2003, a date 3 months prior to the lodgement of his claim regarding lumbar spondylosis.
Counsel for the veteran says that the issue is whether acceptance of lumbar spondylosis which affected the veteran’s ability to work, as a result of a claim made after he turned 65, prevents that lumbar disability being taken into account in respect of an assessment period commencing prior to his turning 65. The claim for lumbar spondylosis as a war-caused injury was made in November 2005 after he was 65. It is common ground that he ceased work in 1989 as a result of the combination of lumbar spondylosis and ischaemic heart disease which at the date of the hearing before the Tribunal were both accepted as war-caused injuries.
Counsel says that although the claim of lumbar spondylosis was not made until after he had reached 65 years of age it should be taken into account as part of the continuum of events and circumstances to be considered prior to the determination of the assessment process. He relies on the reasons for decision in Jebb v Repatriation Commission (1988) AAR 285.
Submission for Commission
The submission by the Commission is that the veteran is not entitled to the special rate because neither s 24(1) nor s 24(2A) of the Act can apply.
In relation to s 24(1), the Commission says this does not apply because it could not be shown in the relevant assessment period that, in respect of the claim for ischaemic heart disease, the cessation of work and the inability to find work was caused by the ischaemic heart disease alone. The evidence is that there were two factors, one being lumbar spondylosis which prior to the determination in May 2006 was not accepted as war-caused.
In relation to s 24(2A), which imposes a more stringent test, the Commission says that this provision cannot apply because one of the essential cumulative requirements in s 24(2A)(f) is that the veteran must have been undertaking his last paid work after turning 65. In the present case it is common ground that Mr Boxsell did not carry out any paid or other work after he attained 65. He had not worked since 1989.
Reasoning on application
In the present circumstances s 24(2A)(f) is not satisfied. This is clear.
In relation to the application of s 24(1) the claim was only in respect of heart disease and not in respect of lumbar spondylosis and it could not be contended that heart disease alone was the cause of his incapacity for work.
The veteran’s case is that the earlier claim should be treated as if both the claim for heart and lumbar spondylosis had been made before 14 November 2005. Therefore, if the two claims are considered together the combined effect of the two disabilities can be shown during the assessment period to have been the cause of his incapacity for work, so that he is entitled to payment as the Special Rate.
The Commission submits that the two disabilities cannot be considered together. They each have distinct assessment periods and in respect of lumbar spondylosis the requirement of s 24(2A)(b) of the Act prevents any amalgamation of the two disabilities or their assessment periods for the purpose of the special rate claim. In support of this submission, Counsel for the Commission refers to the decision of Weinberg J in Rose v Repatriation Commission (2001) FCA 245.
That case proceeded in the basis that aortic stenosis suffered by Mr Rose was war-caused and this determination took effect from 16 April 1993. The assessment period commenced on 16 July 1993 when the claim for aortic stenosis was lodged and ended on 26 February 1999 when the Tribunal gave its decision. On 26 February 1999 the Tribunal decided that Mr Rose suffered lumbar spondylosis which was war-caused but that he was not eligible for the Special Rate pension. The acceptance of lumbar spondylosis took effect from 29 February 1995.
His Honour referred to the 1994 amendments to the Act which were designed to impose more stringent tests on eligibility for entitlement to the Special Rate. These are now found in s 24 of the Act. In Rose the assessment period for lumbar spondylosis began on 29 May 1995 and ended on 26 February 1999.
The finding on the evidence was that Mr Rose had ceased work in 1980 at 60 years of age and that he could not satisfy s 24(1). His lumbar spondylosis condition had been accepted only because of the claim lodged in May 1995. Section 24(2A) could not apply because Mr Rose had ceased work before reaching 65 and did not work after 65. Accordingly, the position was, similar to the present case, that the veteran could not satisfy s 24(2A). Therefore his claim for the Special Rate failed. In other words, without the condition accepted as a result of the later claim, the veteran could not qualify. His Honour accepted the submissions of the Commission.
After observing that the 1994 amendments were intended to restrict the number of veterans eligible for the Special Rate his Honour accepted the reasoning and applied the decision of Matthews J in Clements v Repatriation Commission (1997) 49 ALD 798 and concluded that because Mr Rose could not satisfy the cumulative requirements of s 24(2A) in respect of the Special Rate, the veteran was not eligible. He dismissed the application with costs.
The reasoning in both Rose and Clements is applicable in the present case because the claim on the basis of heart disease could not succeed because of the failure to satisfy the sole cause test, and because in respect of the spondylosis disability Mr Boxsell had not worked after age 65 he could not qualify.
The “continuum” of circumstances argument is not persuasive in this case because the claim for spondylosis, having been made after Mr Boxsell was 65, could never satisfy the requirements of s 24(2A)(f). Moreover, there is no relationship between the heart disease and the spondylosis. They are distinct disabilities.
For these reasons the application for review should be dismissed.
I certify that the thirty (30) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Brian Tamberlin
Signed:
  [Sgd]
           .....................................................................................
Associate (Lucas Bastin)
Date of Hearing  26 March 2007
Date of Decision  13 April 2007
Counsel for the Applicant  Mr N Dawson
Solicitor for the Applicant  KCI Lawyers
Representative for the Respondent     Department of Veterans’ Affairs, Advocacy Section

13 April 2007	Justice Tamberlin, Presidential Member
Mr Allen, Senior Member