Cameron and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 705

Cameron and Repatriation Commission (Veterans’ entitlements) [2015] AATA 705 (14 September 2015)

Division	Veterans’ Appeals Division
File Number(s)	2014/2692
Re	Ronald Cameron
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	14 September 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – veterans entitlements – special rate of pension – veteran over 65 at date of claim – whether veteran incapable by reason of accepted conditions alone from undertaking remunerative work of eight or more hours a week – whether veteran prevented from continuing in the last paid work that he was undertaking by reason of accepted conditions alone – whether veteran had been working on his own account for a continuous period of 10 years – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 s 19, 24, 28, 120(4)

Secondary Materials

Veterans’ Entitlements Bill 1985

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Ronald Cameron served in the Royal Australian Navy from 1959 until 1987.  His service is eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).

2. Mr Cameron seeks review of a decision of the Veterans’ Review Board (VRB) that affirmed a decision of the Repatriation Commission (the Commission) that he is entitled to a disability pension at 100 per cent of the general rate but not to the special rate of pension.

   Legislation

3. The legislation concerning the special rate of pension is in s 24 of the Act.  Different provisions apply depending on the veteran’s age at the date of making the claim for special rate.  A veteran who turns 65 before making a claim must satisfy the provisions in s 24(1).  If a veteran turns 65 after making a claim, s 24(2A) applies.

4. Section 24(2A) imposes a higher test of eligibility.  It reflects the intention of Parliament, as described in the Second Reading Speech for the Veterans Entitlements Bill 1985, that:

   … [the] special rate of disability pension [is] payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment.  [It] was designed for severely disabled veterans of a relatively young age who would never go back to work and could never hope to support themselves or their families or put away money for their old age.  It was never intended that [it] would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce.

5. By s 24(2A) a veteran who turned 65 after claiming the special rate will qualify for special rate if:

   ….

   (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

   (g)when the veteran stopped undertaking his or her last paid work, the veteran:

   (i)if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

   (ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

   for a continuous period of at least 10 years that began before the veteran turned 65; and

   (h)       section 25 does not apply to the veteran.

6. It is not in dispute that Mr Cameron satisfies paragraph 24(1)(a).  However, the Commission contends that he does not satisfy s 24(1)(b) and, even if he satisfies that provision, that he does not satisfy the remaining provisions in s 24(2A).   In particular, he does not satisfy s 24(2A)(d) and (g)(ii).

7. The standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).  The rate of pension is to be determined during the “assessment period” which means the period starting on the application day, in this case 18 May 2010, and ending when the claim or application is determined: s 19. 

   Does Mr Cameron satisfy s 24(1)(b)?

8. Section 24(1)(b) requires that Mr Cameron be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. 

9. In determining whether s 24(1)(b) is satisfied, the only factors that may be taken into account are: the veteran’s vocational, trade and professional skills, qualifications and experience; the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and the degree to which the impairment resulting from his or her disability has reduced the veteran’s capacity to undertake that kind of remunerative work: s 28.

10. By way of background, Mr Cameron was discharged in 1987 at the rank of Commander.  He gave evidence that, after leaving the Navy, he engaged in a number of business ventures.  For approximately three years, he operated a charter boat business which he closed when it was not doing very well financially.  In 1990, he commenced a brokerage business with former Navy colleagues.  That business folded after two years.  For approximately a year from around 1992, Mr Cameron made his offices available to a number of financial traders; in return he took a percentage of the output from the trades.  From 1993 to 1997, he worked in the marketing and sales area of a company involved with sonobuoy technology.  In 1997 he commenced a partnership arrangement which aimed to develop and sell Australian technologies nationally and internationally; that business was not successful and, around this time, Mr Cameron entered into bankruptcy.

11. Mr Cameron gave evidence, which I accept, that in each of the business ventures he undertook, there were secretaries and assistants and he did very little of the day-to-day administrative work.  His computer skills are limited and the osteoarthritis in his right hand makes keyboard work difficult and he has to manage with two fingers.

12. Around 1999 or 2000, Mr Cameron started work as a house painter.  By that time, he and his then wife had separated, he was depressed and drinking too much.  He found house painting therapeutic.  He has since remarried and his depression has improved and he has cut back on his drinking.  The evidence about Mr Cameron’s work as a house painter is considered further below.

13. In cross-examination by Mr O’Reilly, Mr Cameron said that he retired from the Navy in 1987 in order to take up business opportunities with the aim of increasing his income.  He never thought it was “impossible” to go back to the Navy but the business ventures were something new and exciting.  He agreed that he could have gone back into the Navy and “taken a promotion probably”.

14. The Commission contends that Mr Cameron is capable of working for eight hours or more each week, although less than 20 hours.

    Accepted and non-accepted conditions

15. Mr Cameron suffers from a number of disabilities which are accepted as related to his service.  Relevant to these proceedings, they include osteoarthritis of the left and right knees, and the right hand, and lumbar spondylosis.  He also suffers from a number of disabilities which are not accepted as related to his service, including generalised anxiety disorder, alcohol dependence, hypertension and osteoarthritis of the left hand.

    Medical evidence

16. Dr Mark Burns and Dr Robin Chase, occupational physicians, saw Mr Cameron for assessment on 2 October 2014 and 13 February 2015 respectively.  Both provided written reports and gave oral evidence.

17. In his written report, Dr Burns stated that he believed that the osteoarthritis in Mr Cameron’s right-hand was “probably the main reason for his ceasing work [as a house painter] in 2012”.  He noted that, “to a lesser extent”, Mr Cameron has osteoarthritis in the left hand which “would have had an impact on his capacity to work at the current time” as it would make it difficult to climb ladders and to carry tins of paint in the left hand, although he did not think it was a reason for his ceasing work in 2012.  Dr Burns also thought that Mr Cameron would have difficulty using a roller in either hand.  He concluded that the only reason Mr Cameron left work in 2012 was due to his accepted disabilities alone.

18. In his written report, Dr Chase stated that Mr Cameron would not be capable of working as a house painter because of his accepted disabilities alone and particularly because of the osteoarthritis in his knees, right-hand and low back pain.

19. Giving oral evidence, Dr Burns and Dr Chase confirmed their written opinions that Mr Cameron can no longer work as a house painter because of his accepted disabilities.  I accept their evidence and am satisfied that Mr Cameron is no longer capable, because of his accepted disabilities alone, of working as a house painter.

20. The Commission contends that, although he can no longer work as a house painter, Mr Cameron is not totally and permanently incapacitated within the meaning of s 24(1)(b).  The Commission contends that, taking into account his skills, qualifications and experience, and the kinds of remunerative work that a person with those skills, qualifications and experience might reasonably undertake, Mr Cameron retains the capacity to undertake remunerative work for more than eight hours a week.

21. In his written report dated 16 March 2015, Dr Chase expressed the opinion that:

    … Mr Cameron does have some residual work capacity and has very significant administrative and clerical skills as a result of the various senior roles that he held in the Navy as well is his subsequent business and administrative tasks after he left the Navy.  There would be no reason why he could not engage in such administrative, clerical or supervisory roles and his current accepted disabilities have no impact upon him being able to fulfil such roles.  In short if he were working in an office or similar he could work full-time.

22. Giving oral evidence, Dr Chase said Mr Cameron was very senior in the Navy and was the executive officer of a destroyer.  He had a wide range of other business experience after he left the Navy.  He was not reporting any problems with cognition or cognitive function, or anxiety or depression, and there was no reason why he could not do such work.

23. Giving oral evidence, Dr Burns initially said he did not agree with Dr Chase that Mr Cameron had “significant administrative and clerical skills” as a result of his various senior roles in the Navy and subsequently.  He said Mr Cameron usually had support staff working for him.  He said he did not think Mr Cameron had the appropriate skills, qualifications and experience to work in a contemporary office environment.  In particular, he would need a substantial level of retraining to learn sufficient computer skills. He pointed to the fact that Mr Cameron’s business ventures after leaving the Navy did not appear to go well, and one ended in his bankruptcy. 

24. When questioned further, Dr Burns maintained that Mr Cameron does not have significant administrative or clerical skills, but he agreed with Dr Chase that Mr Cameron is physically and mentally capable of performing a senior executive role of the sort he had done in the Navy and subsequently, and that his skills and experience fit that kind of role.

    Consideration

25. When considering whether a veteran is rendered incapable of undertaking remunerative work within the meaning of s 24(1)(b), the inquiry is not limited to the last remunerative work undertaken by the veteran.  The ultimate inquiry is whether the accepted disability or disabilities have prevented the veteran from undertaking any remunerative activity.  For the purpose of that inquiry, s 28 sets out the only matters to which regard may be had. 

26. I accept that Mr Cameron may not have administrative and clerical skills to perform office duties of the kind that he usually had done for him by someone else.  However, he has extensive skills and experience in leadership and management at senior levels from his career in the Navy and in the roles he has undertaken since, in a range of management and leadership roles in business.  The fact that most of his business ventures after leaving the Navy were relatively short-lived does not detract from the fact that Mr Cameron clearly demonstrated a capacity for those roles.  His evidence was that, at least on some occasions, he was approached by others and asked to take on senior roles in those ventures.  By his own evidence, he could have gone back into the Navy and even been promoted.

27. I accept the evidence of Dr Burns and Dr Chase regarding Mr Cameron’s capacity for a senior executive role.  Although Dr Burns was not asked directly how many hours Mr Cameron could perform such a role each week, he did not dispute Dr Chase’s opinion that Mr Cameron could work as much as full time. 

28. I am satisfied that Mr Cameron has the skills qualifications and experience to undertake remunerative work for periods aggregating eight hours or more each week.  It follows that he does not satisfy s 24(1)(b) and therefore does not satisfy s 24(2A)(c), and his claim cannot succeed.

29. Because I find that Mr Cameron is not rendered incapable by his accepted disabilities alone from undertaking remunerative work aggregating eight or more hours a week, it is not necessary to determine whether he satisfies the other provisions in s 24(2A).  Had it been necessary to do so, I would have not been satisfied, on the information before me, that Mr Cameron was working as a house painter for a continuous period of at least 10 years that began before he turned 65.  That information includes Mr Cameron’s repeated descriptions of his house painting work as “sporadic” for various reasons throughout that period, his inability or unwillingness to identify how often he actually worked, and his income over that period as demonstrated in his Australian Taxation office records.

    Conclusion

30. I affirm the decision under review.

31.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated  14 September 2015

Date(s) of hearing		27 August 2015
Representatives for the Applicant		Ms Esther Rice, Legal Aid
Representatives for the Respondent	Mr Tim O'Reilly, Advocate