BRIAN MANSFIELD and REPATRIATION COMMISSION
[2010] AATA 192
•23 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 192
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1492
VETERANS' APPEALS DIVISION ) Re BRIAN MANSFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date23 March 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s entitlements – Veteran in receipt of 100% general rate pension – Veteran not able to undertake remunerative work for more than 8 hours per week because of service-related conditions – Veteran not prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – Special rate of pension not payable - Intermediate rate of pension not payable decision affirmed
Veterans’ Entitlements Act 1986 ss 5Q, 14, 19, 22, 23, 24, 119, 120
Birtles v Repatriation Commission (1991) 24 ALD 545
Flentjar v Repatriation Commission (1997) 26 AAR 93
Re Hanrahan and Repatriation Commission (1992) 26 ALD 766.
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
23 March 2010 Mr R G Kenny, Senior Member BACKGROUND
1. On 5 March 2007, Brian Mansfield made a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a disability pension for incapacity from conditions which, he contended, were related to his Royal Australian Navy (RAN) service. On 1 November 2007, a delegate of the Repatriation Commission accepted his claim in relation to post traumatic stress disorder, alcohol dependence, osteoarthritis of right knee, fracture of right knee cap, patellectomy, fracture of the right clavicle (healed) and hypertension. Disability pension was assessed under s 22 of the Act at 100% of the general rate with effect from 5 December 2006 in relation to incapacity associated with those conditions as well as that from the previously accepted conditions of bilateral sensori-neural hearing loss and impotence. On 1 April 2009, the Veterans’ Review Board (the Board) affirmed that decision. In assessing pension, the delegate and the Board determined that the applicant did not qualify for the intermediate or special rate of pension under s 23 or s 24 of the Act, respectively.
ISSUES AND LEGISLATION
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act. It requires the rate of pension to be assessed from time to time during the assessment period[3] which is defined as starting on the application day and ending when the claim or application is determined[4]. It is not disputed that the application day in this case was 5 March 2007 and that the assessment period runs from that day until the matter is determined.
[1] See s 120(4) and s 119(1) of the Act, respectively.
[2] See s 120(6) of the Act.
[3] See s 19(5C) of the Act.
[4] See s 19(9) of the Act.
3. No challenge is made by the applicant in this matter to the general rate of pension paid to him at 100%. The issue raised is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that the applicant was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it was conceded by Leisa Pendle, for the respondent, that the incapacity component in s 24(1)(b) of the Act is met at all material times. This is that Mr Mansfield is totally and permanently incapacitated in that his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that Mr Mansfield:
is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and
is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb).
4. The issue for determination is whether the applicant’s circumstances meet those requirements in s 24(1)(c) of the Act.
EVIDENCE
Mr Mansfield
5. Mr Mansfield gave the following evidence. He served in the RAN from 1962 until 1971. He completed the 2 year course at the RAN music school with training in use of percussion and keyboard instruments. He played with the RAN band. Mr Mansfield served in Vietnam during his time in the RAN and was treated for depression in the period after his return to Australia. This included a consultation with psychiatrist Dr John McGeorge in May 1969.
6. In 1973, Mr Mansfield joined the Royal Australian Air Force (RAAF) to be a percussionist in the RAAF band. Shortly after this enlistment, he sought to be discharged because the RAAF decided to terminate the operation of the band. His applications for discharge were rejected and he remained with the RAAF until 1984, rising to the rank of sergeant. The RAAF did not follow through with the plan to terminate the band and Mr Mansfield was engaged in it during his RAAF service. Although he “stuck it out” for 11 years, he was dissatisfied because many of the best musicians had left the RAAF. During those RAAF years, he consumed alcohol heavily and had many disagreements with his wife and children.
7. In the period between his RAN and RAAF service, Mr Mansfield worked for two separate employers as a storeman and with Australia Post as a postal worker. After leaving the RAAF, he wanted to continue a career as a musician. He, his wife and 3 children moved from RAAF Richmond to Maleny where they had purchased an old 2½ acre dairy farm. He was unable to get work in the Maleny area. He purchased a bus and caravan to travel and, on arriving at a caravan park at Airlie Beach, became aware that positions were available there. He and his wife were employed at the caravan park, she as the caretaker and he as the groundsman. This lasted for about 4 months. They then returned to Maleny, sold their house and moved to Caloundra in 1988 where they rented a house for about 12 months while Mr Mansfield built a house there as an owner/builder. He found the process frustrating and had many disputes with subcontractors and with his family. Mr Mansfield was employed for about 3 years in the period from 1988 to 1996. This included work in the Noosa area as a roofing water-proofer. He also worked, for about 3 days per week for 12 months, for a wholesaler delivering supplies to restaurants and cafes in the Caloundra area. This job finished when the business closed down. In the remainder of the time, he took lessons in singing and practised this and his keyboard in the hope of taking up a career in music. He also found that the playing of music was therapeutic and helped him to gain confidence in himself.
8. In 1996, he enrolled in Brisbane in a warehouse management course which he was unable to complete because, unlike Mr Mansfield who paid to take the course, most of the students were funded by Centrelink and were very disruptive in class. He completed approximately 3 weeks of the course which was scheduled to run for 3 months. He continued with his practice of music after that but his relationship with his wife began to deteriorate. She questioned what he was doing and, at about that time, he felt that “something was going wrong with his head.” Again, he found the therapeutic effects of his music to be beneficial.
9. In 2000, Mr Mansfield met up with another former service musician, Jim Cutts, who had experience in performing in venues such as clubs and hotels. He and Mr Cutts formed the “Glasshouse Duo”. He described Mr Cutts as the “man up front” who performed and sang. Mr Mansfield played keyboard and sang harmony. Mr Mansfield said that he would not have had sufficient confidence to perform on his own when they started in about 2000. They would, one night per week, play at venues to entertain patrons during dinner and then would continue afterwards. He would fortify himself by consuming alcohol before each performance with Mr Cutts. In the later part of each evening performance, the patrons were younger and often intoxicated.
10. In about 2001, Mr Mansfield and his family sold their Caloundra house and moved to Maryborough. They rented premises while a new home was built for them. This move severed his working relationship with Mr Cutts. In Mooloolaba, Mr Mansfield sought solo entertainment work. He was engaged at the Boonaroo Bowls Club about once a month for about 4 hours on each occasion. He did not enjoy performing alone and felt extremely nervous. He continued to consume alcohol before performing and he again noted the change in the make-up and behaviour of the patrons as each evening progressed. On the last occasion when he performed in August 2002, two patrons heckled him. They would not stop so he ended his session. He has neither performed nor sought any form of remunerative work since then. Mr Mansfield earned $200 per evening when he worked with Mr Cutts and $150-180 when he performed solo.
11. Mr Mansfield conceded that the life of a musician was a difficult one. In particular, he found it difficult to compete with “keno, poker machines, raffles and noisy television sets”[5]. He also said that it was difficult to obtain work, especially when he worked on his own. He said that this was the case in the areas around where he lived in Maryborough because his enquiries revealed that available venues already had their own artists which they relied on to provide entertainment.
[5] See statement, dated 21 May 2009, at [21].
12. Mr Mansfield and his wife sold their Maryborough home in 2006 and moved to a house they purchased at Kallangur in Brisbane. They did this to assist their son and daughter in law who shared the accommodation while they saved to purchase a house of their own. He said that the continuing tension between him and his wife led to their separation in early 2007. He said that his wife retained the Kallangur house and he now lives in a house at Tingoora, near Kingaroy, which he purchased in 2005. In his claim for pension lodged in March 2007, he nominated his address at that time as being in Kallangur[6].
[6] See T1/25.
13. Mr Mansfield accepted that he had advised Dr Athey that he had not worked since 1996 but explained this as a reference, generally, to full-time work.
Ashley Mansfield, the applicant’s son
14. Ashley Mansfield provided a statement, dated 25 November 2009. He described a long history of a difficult relationship with his father. He referred to frequent outbursts of anger. He recalled that, when he was about 10 years of age, his father, who was in the RAAF at the time, would come home in an intoxicated state. He described a difficult relationship between his parents. He said that this was also the case between his siblings and their father.
Medical records
15. Mr Mansfield’s service medical records refer to his psychiatric referral to Dr McGeorge during his RAN service and to treatment for anxiety/depression including the prescription of Librium in 1969. His RAAF records, completed in 1974 shortly after enlistment, describe feelings of stress in Mr Mansfield and to difficulties with his wife and children. These were attributed at the time by Mr Mansfield as reactions by them to his being moody and because he took his work problems home with him.
Dr Ashim Majumdar, Psychiatrist
16. Dr Majumdar completed reports dated 15 March 2007, 24 May 2007, 14 June 2007, 2 March 2009 and 12 November 2009. He also gave oral evidence. His opinion was that Mr Mansfield is not capable of working for more than 8 hours each week because of the effects of his post traumatic stress disorder. He noted that Mr Mansfield had worked as a musician and ceased this in August 2002 following an incident with some club patrons while he was performing his solo act. He wrote that the incident had a detrimental effect and lasting impact on him to the point where he was unable to work. He described Mr Mansfield as being unable to cope with stress for many years because of his post traumatic stress disorder and would turn to heavy alcohol consumption. He described Mr Mansfield’s post traumatic stress disorder as a “crippling problem” for him.
Dr Robert Athey, Psychiatrist
17. Dr Athey completed a report, dated 28 June 2003, and also gave oral evidence. In his report, he recorded Mr Mansfield as advising him that he had experienced anxiety disorder since serving in the RAN, that he had not worked since 1996 and that he believed he was still capable of working on a part time basis. Dr Athey wrote that Mr Mansfield would be capable of part-time employment involving short periods of absence. In completing that report, Dr Athey had no access to Mr Mansfield’s service or other medical documents. Dr Athey was taken through the history of Mr Mansfield’s treatment on service for anxiety; his evidence relating to alcohol consumption, family difficulties, disputes with tradesmen, lack of confidence for some years about performing as a singer and key-board player without the support of Mr Cutts; the need to consume alcohol prior to performances with Mr Cutts and when performing solo; and the ultimate cessation of entertainment work after the incident with club patrons. In his evidence, Dr Athey then concluded that these were the continuing effects on Mr Mansfield of his post traumatic stress disorder and that both he and Mr Mansfield had underestimated the impact of this condition on him. His opinion was that, both when he saw Mr Mansfield and at the present time, he was not capable of working on a full or part-time basis because of his post traumatic stress disorder.
SUBMISSIONS
18. Anthony Harding, for the applicant, and Ms Leisa Pendle, for the respondent, agreed that the remunerative work that Mr Mansfield was undertaking, relevant to his application, was as a musician/entertainer.
19. Ms Pendle contended that the applicant did not meet the requirements of s 24(1)(c) of the Act in that his accepted disabilities, alone, did not prevent him from continuing to undertake remunerative work during the assessment period. She nominated other relevant factors as being his age, his lack of recent work experience and time out of the workforce prior to the start of the assessment period[7]. She also referred to the particular difficulties associated with obtaining work in the entertainment industry; to the significance of the severance of Mr Mansfield’s working relationship with Mr Cutts; and the lack of Mr Mansfield’s satisfaction in providing entertainment for intoxicated patrons. Ms Pendle also submitted that the ameliorating terms of s 24(2)(b) of the Act were not applicable to Mr Mansfield because there was no attempt by him to obtain remunerative work during the assessment period.
[7] Relying on Repatriation Commission and Hendy (2002) 76 ALD 47 at 54-55.
20. Mr Harding submitted that all of the criteria in s 24 of the Act were met. In particular, this was because the only reason for the applicant ceasing to continue employment was the effect upon him of his accepted disabilities and that, as a result, he had suffered a loss, albeit small, of income. He submitted that age was not a relevant factor in the continuation of an entertainer’s working life; that there was no loss of skill in Mr Mansfield during the period from his last work until the start of the assessment period; and that he was well located to seek work in the variety of clubs and hotels in the area where he was living at the start of the assessment period. In the alternative, while he conceded that Mr Mansfield had not been seeking to engage in remunerative work during the assessment period, he submitted that Mr Mansfield had demonstrated a desire to work until 2002 and had been prevented from seeking further work because of his post traumatic stress disorder.
CONSIDERATION
21. As noted above, Ms Pendle conceded that the applicant meets the requirements of s 24(1)(aa), (aab), (a)(i) and (b) of the Act. Material before me is that a claim under s 14 of the Act has been made, that the applicant is not yet aged 65 and that his degree of incapacity is in excess of 70%. The opinion of Dr Majumdar and Dr Athey is that the applicant is not capable of working. On the basis of that evidence, I am satisfied that Ms Pendle’s concessions were properly made.
22. The Federal Court in Flentjar v Repatriation Commission[8] said that a proper application of s 24(1)(c) of the Act requires consideration of the following questions:
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?
[8](1997) 26 AAR 93.
Step 1:
23. The term remunerative work is defined in the Act to include any remunerative activity[9]. While it is common ground that the remunerative work in Mr Mansfield’s case is that of a musician/entertainer, I am satisfied that it is more specific than that general description. All of his post-RAAF practice and remunerated work was in singing and keyboard use and no other aspect of his musical background has been relevant to post-RAAF employment. Accordingly, I am satisfied that this qualification should be added to the nature of the remunerative work, for the purposes of s 24 of the Act, that Mr Mansfield was undertaking. This means that his remunerative work was as a musician/entertainer (singing and keyboard).
[9] See s 5Q of the Act.
Step 2:
24. On the evidence of Dr Majumdar and Dr Athey, I am satisfied that, throughout the assessment period, Mr Mansfield’s accepted disabilities have been sufficient to prevent him from continuing to undertake work as a musician/entertainer (singing and keyboard). Accordingly, the second of the Flentjar questions is answered “yes”. This was conceded by Ms Pendle.
Step 3:
25. The third of the Flentjar questions in Mr Mansfield’s situation is whether accepted disabilities were the only factors preventing him from continuing to undertake work as a musician/entertainer (singing and keyboard) as at the start of the assessment period.
26. I do not accept the contention that reaching age 63 years at the start of the assessment period would necessarily be such a factor. It is not uncommon, as Mr Harding contended, for persons of that age who have been engaged in a career in the entertainment business to continue being involved, on a professional level, after that age. However, Mr Mansfield’s situation does not meet that description. While he had a long history of involvement with music, this was in the setting of the controlled environment of the RAAF band where he played percussion instruments. This ended in 1984. While I accept that Mr Mansfield’s RAN and RAAF training and experience underpinned his subsequent involvement with music, his work in 2000 and 2001 was materially different from that in which he engaged in his service life.
27. Mr Mansfield’s evidence was vague and uncertain in relation to when he commenced professional entertaining with Mr Cutts, how often he performed with him and how often and where he worked after moving to Maryborough. As I understand his evidence, he sang and played keyboard for 1 night per week in a stage setting in clubs and hotels in the Caloundra area with Mr Cutts for about 18 months; and did so on his own for one night per month in the Maryborough area for a further 12 months until August 2002. Accordingly, at the start of the assessment period, he would have been a 63 year old man continuing, not a long professional entertainment career, but one of approximately 2½ years duration. Furthermore, at that time, he would have been absent from the hotel and club scene for 4½ years, a period almost twice the length of the period of his remunerated work. In that situation, I am satisfied that his age and length of time out of the work force would have a significant impact on his capacity to continue in remunerative work as an entertainer/musician (singing and keyboard).
28. Mr Mansfield’s evidence was that working opportunities were limited in the Maryborough area because, as he discovered, available venues already had artists to fill their respective entertainment agendas. I am satisfied that this unavailability of work would have been a factor in preventing Mr Mansfield‘s continuation in work as an entertainer/musician (singing and keyboard) had he remained living in that area[10]. By the start of the assessment period, Mr Mansfield had moved away from that area to Kallangur and, accordingly, had removed himself from a situation where he had a familiarity with the potential, though limited, working environment. His evidence was that this move was related to family concerns and not one precipitated by concerns associated with his accepted disabilities[11]. His evidence was also that he did not seek any work in the Kallangur area and there is no evidence that he made any enquiry about the prospect of employment in that area.
[10] See Re Hanrahan and Repatriation Commission (1992) 26 ALD 766.
[11] This is unlike the situation which arose in Birtles v Repatriation Commission (1991) 24 ALD 545.
29. In summary, I am satisfied that Mr Mansfield’s age, lack of recent work experience, time out of the workforce and relocation for reasons not associated with his accepted disabilities, and not only his accepted disabilities, would have been relevant factors in preventing him from continuing in remunerative work as an entertainer/musician (singing and keyboard) as at the start of and during the assessment period.
30. The first limb of s 24(1)(c) of the Act may be ameliorated by the operation of s 24(2)(b) of the Act which applies if, during the assessment period, Mr Mansfield has been genuinely seeking to engage in remunerative work but has been unsuccessful substantially because of his accepted disabilities. Mr Mansfield’s evidence was that he did not seek work after August 2002. This means that he was not “looking out”[12] for work to be engaged in at any time after that date and, accordingly, not in the assessment period. Mr Harding submitted that s 24(2)(b) of the Act also applies where Mr Mansfield was prevented from seeking remunerative work substantially because of his accepted disabilities. While I accept that accepted disabilities may have played a part in this, I am satisfied that, given the role of his age, time out of work, removal from the area of familiarity and absence of evidence of available work, any failure to seek remunerative work was not substantially because of his accepted disabilities.
[12] See Leane v Repatriation Commission (2004) 81 ALD 625 at [29].
31. Step 3 is answered in the negative.
Step 4:
32. As there is not an affirmative answer at step 3, the fourth of the Flentjar questions does not arise.
33. For the reasons given, s 24(1)(c) of the Act is not met and the special rate of pension is not payable to the applicant. The intermediate rate of pension is provided for in s 23 of the Act. The terms of s 23(1)(c) of the Act are identical to those of s 24(1)(c) thereof. For the reasons given above, s 23(1)(c) of the Act is not met and the intermediate rate of pension is not payable to the applicant.
DECISION
34. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: ..................[Sgd]..........................................................
Kate Slack, Research AssociateDate/s of Hearing 25 February and 9 March 2010
Date of Decision 23 March 2010
Counsel for the Applicant Anthony Harding
Solicitor for the Applicant Terence O'Connor
Solicitor for the Respondent Leisa Pendle, Australian Government Solicitor
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