BRUCE FOWLER and REPATRIATION COMMISSION - [2013] AATA 499

[2013] AATA 499

Division VETERANS' APPEALS DIVISION

File Number

2012/3462

Re

BRUCE FOWLER

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Senior Member Dr K S Levy, RFD
Member Dr M Sullivan

Date 15 July 2013

Place Brisbane
The Tribunal affirms the decision under review.
………………[SGD]………………..
Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Disability pension – Special rate – Intermediate rate – Remunerative work – War-caused conditions “alone” – Period of remunerative work able to be performed – Loss of earnings – Not due to war caused conditions – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25

Veterans' Entitlements Act 1986 (Cth) ss 19, 23, 24, 120

CASES
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Hopkins and Repatriation Commission [2013] AATA 270
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
Member Dr M Sullivan
BACKGROUND

The applicant, Bruce Fowler, was a national serviceman from 1970 to 1972. He has a number of accepted conditions which are attributed to his operational service and is entitled to a pension at 70% of the general rate. He made application to be paid the “intermediate rate” or the “special rate” in respect of two of his accepted conditions – posttraumatic stress disorder (PTSD) and alcohol dependence.
This application was rejected by the Repatriation Commission on 7 October 2010. It was the subject of further review by the Veterans’ Review Board and was again rejected by a decision dated 26 June 2012. He now seeks a re-hearing of this matter under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUES
The questions to be answered by this Tribunal are:
(1)Whether the applicant’s incapacity from his war caused conditions “alone” renders him incapable of undertaking remunerative work either “for periods aggregating more than 8 hours per week” within s 24(1)(b) or, alternatively, for “work otherwise than on a part-time basis or intermittently” within s 23(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”); and
(2)If so, whether the applicant is by reason of his incapacity from war caused conditions “alone” prevented from continuing to undertake remunerative work and as a result suffering a loss of earnings that the veteran would not be suffering if the veteran were free from that incapacity within s 24(1)(c) or s 23(1)(c) of the Act?
EVIDENCE
Mr Fowler is now 63 years of age. He was selected, by ballot (as the system then existed), to undertake national service. The legislation required those so selected to undertake two years full-time military service and it required them to serve, if necessary, on active service in South Vietnam. Mr Fowler was allotted to the Royal Australian Artillery for his period of national service. Within that period (February 1970 to February 1972) he served in South Vietnam for seven and a half months (from 17 December 1970 to 29 July 1971). He was employed as a driver/signaller in a radar unit (131 Div…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 499
Decision Date

CaseChat Overview and Summary

In the case of Bruce Fowler and Repatriation Commission, the applicant, Mr Fowler, sought to have his eligibility for a higher rate of pension assessed under the Veterans’ Entitlements Act 1986 (Cth). Mr Fowler, a veteran who served in South Vietnam, suffers from several disabilities related to his military service, including osteoarthritis of both knees, sensorineural hearing loss, tinnitus, posttraumatic stress disorder (PTSD), and alcohol dependence. The central issue before the court was whether Mr Fowler's disabilities rendered him incapable of undertaking remunerative work either for periods aggregating more than eight hours per week or on a part-time or intermittent basis, thereby qualifying him for a higher pension rate under either section 24 or section 23 of the Act.

The court considered the nature and extent of Mr Fowler's disabilities and their impact on his ability to work. Mr Fowler's lawyer argued that his client's conditions were directly linked to his war service and that he could not work more than eight hours per week due to his incapacity. The court also examined Mr Fowler's employment history, noting his transitions between different jobs and the difficulties he faced, particularly in relation to his alcohol dependence. The court had to determine whether Mr Fowler's disabilities alone prevented him from undertaking remunerative work as required by the statutory provisions.

After careful consideration of the evidence and arguments presented, the court concluded that Mr Fowler did not meet the criteria set out in either section 23 or section 24 of the Act. The court found that Mr Fowler's incapacity did not render him incapable of undertaking remunerative work for periods exceeding eight hours per week or on a part-time or intermittent basis. Additionally, the court determined that Mr Fowler was not prevented from continuing to undertake remunerative work due to his disabilities alone. Consequently, the decision to affirm the lower pension rate was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The questions to be answered by this Tribunal are:(1)Whether the applicant’s incapacity from his war caused conditions “alone” renders him incapable of undertaking remunerative work either “for periods aggregating more than 8 hours per week” within s 24(1)(b) or, alternatively, for “work otherwise than on a part-time basis or intermittently” within s 23(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”); and (2)If so, whether the applicant is by reason of his incapacity from war caused conditions “alone” prevented from continuing to undertake remunerative work and as a result suffering a loss of earnings that the veteran would not be suffering if the veteran were free from that incapacity within s 24(1)(c) or s 23(1)(c) of the Act?EVIDENCE Mr Fowler is now 63 years of age. He was selected, by ballot (as the system then existed), to undertake national service. The legislation required those so selected to undertake two years full-time military service and it required them to serve, if necessary, on active service in South Vietnam. Mr Fowler was allotted to the Royal Australian Artillery for his period of national service. Within that period (February 1970 to February 1972) he served in South Vietnam for seven and a half months (from 17 December 1970 to 29 July 1971). He was employed as a driver/signaller in a radar unit (131 Div Loc Bty). As a result of that military service Mr Fowler has the following recognised disabilities:(1)osteoarthritis of both knees;(2)sensorineural hearing loss;(3)tinnitus;(4)posttraumatic stress disorder (PTSD); and(5)alcohol dependence. These recognised conditions have resulted in Mr Fowler’s eligibility for a veterans’ pension, at 30% of the general rate initially (for conditions (1) to (3) above) with effect from 18 March 2010; and then at 70% of the general rate with effect from 9 May 2010 (by the addition of conditions (4) and (5) above). Mr Fowler’s civilian employment was as a clerk in the insurance industry prior to his national service training. On discharge from the army in February 1972, he returned to the insurance industry but undertook sales work. In 1979, he moved to New Zealand with his wife and continued to work in insurance sales for 15 years. He then worked for 16 years (1994 to February 2010) in sales and administration in the car industry (exclusively working for Greg Weeks Motors). In February 2010, he returned to Australia with his new partner. In oral evidence before the Tribunal, Mr Fowler stated that he became friends with the owner of the car business he worked for and was “tolerated” for a long time as his performance was a problem owing to his propensity to drink too much. He said it was “on the cards” that he might be sacked. In relation to dealing with his problem drinking, Mr Fowler said he could not get all of the assistance he needed in New Zealand and after speaking with other returned servicemen in New Zealand he left Greg Weeks Motors and returned to Australia in 2010. He did some voluntary work “on and off for six months” and then started looking for work at the end of 2011. He has not had success in obtaining work since that time.

Decision

Reasons for decision

We therefore find that neither s 23 nor s 24 of the Act is satisfied. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Mr Black, for the veteran, submitted that the kind of “remunerative work” for Mr Fowler is administrative or sales. He also said the diagnosed conditions are linked to his war caused conditions and he could not work more than eight hours per week. Alternatively, he pointed to the report of Dr Grehan, a compensation medical advisor, who suggested that Mr Fowler would be likely to have long periods of absence from work.[2] He also referred the Tribunal to the recent decision of the AAT in Hopkins and Repatriation Commission [2013] AATA 270. CONSIDERATION[2] Exhibit 1, T-documents, p. 84.Legislative Framework Section 19(9) of the Act requires determination of eligibility under ss 23 and 24 to be made in relation to the “assessment period”. In this case, the assessment period commences on 9 August 2010 (the date of the applicant’s claim) and concludes on the date of determination. Other relevant provisions of the Act are as follows:23 Intermediate 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’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and(c) the veteran is, by reason of incapacity from 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 from that incapacity; and(d) section 24 or 25 does not apply to the veteran.(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.(3) For the purpose of paragraph (1)(c):(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:(i) if 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;(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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.…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, 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.

Division	VETERANS' APPEALS DIVISION
File Number	2012/3462
Re	BRUCE FOWLER
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Senior Member Dr K S Levy, RFD Member Dr M Sullivan
Date	15 July 2013
Place	Brisbane