Canuto and Repatriation Commission (Veterans' entitlements)

[2020] AATA 5073

Canuto and Repatriation Commission (Veterans' entitlements) [2020] AATA 5073 (16 December 2020)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/0786

Re:James Canuto

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy

Date:16 December 2020

Place:Brisbane

The decision under review is affirmed.

...........................[SGD].............................................

Deputy President I R Molloy

CATCHWORDS

VETERANS’ ENTITLEMENTS – application for special rate of pension – whether capable of undertaking remunerative employment exceeding an aggregate 8 hours per week – whether last remunerative work ceased due to war-caused injury or war-caused disease alone – whether loss of income or wages as a result of war-caused injury or war-caused disease alone – consideration of termination from previous employment – eligibility for special rate pension not met – decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986

CASES

Summers v Repatriation Commission [2015] FCAFC 36

REASONS FOR DECISION

Deputy President I R Molloy

16 December 2020

1. Mr Canuto is a veteran who served in the Vietnam War. On 23 November 2018 he lodged a disability pension claim.

2. On 16 January 2019 a delegate of the Repatriation Commission accepted Mr Canuto’s claim for post-traumatic stress disorder and alcohol use disorder with effect from 23 August 2018.

3. The delegate also decided that Mr Canuto’s disability pension be increased to the Extreme Disablement Adjustment rate. The delegate rejected a claim for payment at the Special Rate.

4. Mr Canuto applied for a review by the Veterans’ Review Board on 18 February 2019. On 5 November 2019 the Board affirmed the Commission’s decision rejecting the claim for payment at the special rate.

5. Mr Canuto has applied by application dated 4 February 2020 to the Tribunal for review. The issue is whether Mr Canuto is entitled to the special rate pension.

6. Evidence was given by Mr Canuto and his treating psychiatrist Dr Janet Bayley. The applicant also relied on reports from Dr Bayley and on other medical reports contained within the T-Documents.

7. Written statements were received from Ross Andrews, Carolyn Sinclair, Patricia Bailey OAM, Florence Watson OAM, Steven Begg, Nerelle Nicol, Kathy Lakatos, Kathy Hare, Brian Griffin and Cleveland Fagan.

8. Oral evidence was also given by Norman Rowe AM and Anthony Blumer (each of whom also provided written statements). All of these witnesses spoke positively of Mr Canuto.

   Legislation

9. Mr Canuto was born in 1948 and therefore turned 65 in 2013.

10. Because he was over 65 years of age when his claim was lodged, s 24(2A) of the Veterans’ Entitlements Act 1986 (the Act) is engaged. Section 24(2A) of the Act applies to a veteran if each of its sub-paragraphs (a) to (h) are satisfied.

11. Specifically, section 24(2A) of the Act provide:

    (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

    (g)  when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work 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.

12. Section 24(2B) of the Act provides:

    (2B)  For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

    (a)  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

    (b)  the veteran is incapacitated, or prevented from engaging  in remunerative work for some other reason.         

13. It is not disputed that Mr Canuto’s last paid work was as Manager/CEO with Mutkin Residential and Community Aged Care. Although he undertook a wide range of duties, some of them relatively menial, Mr Canuto accepted he could be described as Key Personnel.

14. In mid-2013 responsibility for management of the Aged Care Program was transferred from the Yarrabah Aboriginal Shire Council to Mutkin Residential and Community Aged Care Indigenous Corporation (Mutkin). Mr Canuto, who had been employed from 1991 by the Council, remained on in substantially the same position. After the transfer he became answerable to the Mutkin Board not the Council.

15. Mr Canuto’s position and duties were essentially unchanged. His evidence was that he was planning to enter into a written employment agreement with Mutkin. Because of events occurring shortly after the transfer, referred to in more detail below, that did not occur. Instead Mr Canuto’s employment was terminated in late 2013.

    Incapable of more than 8 hours per week of paid work

16. The respondent contends that Mr Canuto does not satisfy s 24(1)(b) of the Act, and consequently does not satisfy the requirements of s 24(2A)(c) of the Act.

17. Section 24(1)(b) provides:

    Special rate of pension

    (1)  This section applies to a veteran if:

    …

    (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; …

18. As I have said Dr Janet Bayley is Mr Canuto’s treating psychiatrist, and has been since July 2018. She has been reviewing him monthly. Dr Bayley was taken to her report dated 7 February 2019.

19. In that report Dr Bayley expressed the opinion Mr Canuto was suffering from post-traumatic stress disorder, and an anxiety disorder, with an alcohol disorder in remission, that are directly related to his ADF service.

20. She also said, based primarily on what Mr Canuto told her:

    “I believe that the Post-traumatic Stress Disorder and Anxiety Disorder, were significantly involved with regards his difficulties in managing his role at Mutkin. He felt unsupported there and lacked information regarding how he should proceed with his job. There are many inconsistencies with regards governance of his position and the facility.”

21. In a report dated 8 April 2020 Dr Bayley said Mr Canuto “has capacity to undertake part time work in youth justice or youth support work as he has done with the Kapani Warriors Project. He would be able to undertake other types of support work and general low level administrative duties.”

22. In a report dated 28 July 2020, Dr Bayley said Mr Canuto is employable and fit for work at present. She said: “He has the capacity to work two x four-hour days a week in youth work with adolescents over the age of 18. He can provide general support and mentorship and he would be able to do this for forty weeks a year.” This opinion is expressed in precise terms.

23. Dr Bayley does not actually say Mr Canuto is incapacitated (whether from war-caused injury or war-caused disease alone, or for any other reason) as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Whether or not this is what she intended to convey in her report, I cannot accept this to be correct in light of the other evidence. It is apparent that Dr Bayley did not have any detailed knowledge of the work Mr Canuto had been undertaking in recent times. She said “I understand he has done some voluntary work with the Kapani group and general things like that…”.  

24. Anthony Blumer, who gave evidence, is managing director of Kapani Warriors. Mr Canuto is engaged by Kapani in a community liaison role conducting outreach services in Cape York. In a written response to questions he was asked, dated June 2020, Mr Blumer referred to Mr Canuto’s skills and qualifications.  He says “James has undertaken a range of mentoring, advisory and Community Relations roles with Kapani over the last 2 years … he works with us to provide job readiness programs in remote communities.”

25. Mr Blumer was asked to outline the duration of the work Mr Canuto performed e.g. number of hours worked and frequency. He said “For Warrior courses the duration is normally 5-7 days inc driving to/from. Hours are variable depending on circumstances and range from 4-9 hours a day but it does not involve lifting or any strenuous activity. For Kapani Cup the program was 10 days long working approximately 8 hours a day. Advice and support to Kapani operations during Covid – as required. Intermittent – a few hours here and there.”

26. In answer to the question “Outline the duration of this work e.g. hours worked/week and weeks worked/year”, Mr Blumer said “Approx 2-4 courses per year (20 days). Kapani cup when conducted (10 days) Cairns based work 2 hrs/month.”

27. Mr Canuto did not disagree with anything contained in Mr Blumer’s written answers. Mr Blumer, in his oral evidence, expanded on the contents of his written responses. He said Mr Canuto filled an elder statesman role for young indigenous men.

28. The evidence of Mr Blumer indicated the amount and frequency of work available or performed by Mr Canuto is limited. But it is plain that Mr Canuto is capable of working more than an aggregate 8 hours per week.

29. I am satisfied he is capable of undertaking remunerative employment exceeding an aggregate 8 hours per week.

    Incapacity alone prevented continuing last paid work

30. The respondent contends the applicant does not satisfy s 24(2A)(d) of the Act because he was not, because of war-caused injury or war-caused disease, alone, prevented from continuing to undertake his last paid work that he was undertaking before he made the claim or application.

31. The requirement of this provision is settled. It requires that the veteran was prevented because of war-caused injury or war-caused disease alone (that is, only for that reason, and not for any other reason) from continuing his last remunerative work: see Summers v Repatriation Commission [2015] FCAFC 36, [165]-[167] (and the cases there referred to). This calls for a factual enquiry into why Mr Canuto was prevented from continuing his last paid work.

32. Mr Canuto’s last paid work before he made his claim was employment as a manager/CEO in the aged care sector. His employer was Mutkin Residential and Community Aged Care, Yarrabah. That was from 1 July 2013 to 1 December 2013. Prior that he was employed, as I have said, in the same capacity in the aged care facility at Yarrabah by Yarrabah Shire Council from 1991.

33. The respondent points out that the applicant was dismissed from his employment for misconduct. Reliance is placed upon a Centrelink employment separation certificate signed on behalf of his employer, dated 23 December 2013. It records his employment ceased 1 December 2013. 

34. The certificate records the “Reason for separation” as “Misconduct as an employee.” The reason or further details are recorded as “Terminated for gross misconduct.”

35. A letter from Mutkin Residential and Community Aged Care dated 2 December 2013, being a letter of termination addressed to Mr Canuto, sets out a series of allegations involving dishonesty. The letter states in part:

    “The nature of these allegations is most serious. Mutkin has considered your response and has found them to be unsatisfactory. Given these findings, we have made a decision to terminate your employment.”
    
    

36. Mr Canuto was tried in the District Court at Cairns in relation to these matters. On 15 November 2016, he was convicted of one count of fraud with a circumstance of aggravation. He was given a custodial sentence of four years. An appeal against conviction to the Supreme Court of Queensland Court of Appeal was dismissed: R v Canuto [2017] QCA 281 (17 November 2017).

37. The reasons of the Court of Appeal, delivered by Boddice J (with which Sofronoff P and Gotterson JA agreed), included:

    [5] At the time of the offence, the appellant was the Chief Executive Officer (“CEO”) of the Mutkin Residential and Community Aged Care Indigenous Corporation (“Mutkin”), a community based organisation. Mutkin had responsibility for the operation of an aged care facility. That facility was previously operated by the Yarrabah Shire Council. The appellant had been manager of the aged care facility prior to the transfer of that facility by the Council to Mutkin in 2013.

38. There is nothing to indicate in the Court’s reasons that disclose either the Crown or the defence relying on medical or specialist psychiatric opinion.

39. A discharge/release notice records his date of admission to custody as 17 November 2016 and date of discharge/release as 14 May 2018.

40. The respondent submits the applicant ceased his last remunerative work with Mutkin Residential and Community Aged Care for reasons other than war-caused injury or war-caused disease.

41. On behalf of the applicant it is contended that his PTSD related accepted disability was the cause of his dismissal from his workplace. It is contended that Mr Canuto’s accepted PTSD was the main contributor to his dismissal “as he was placed in the position that was not of his doing and subsequently caused him to crash and burn”.

42. A report of Dr A Korinihona, dated 10 June 2014 records:

    “James was managing an aged care facility but his tolerance with an ineffective board was severely tested recently, when his patience ran out due to perceived inactivity and as a result, he was sacked because he went ahead and actioned a few decisions which the Board was dragging their feet in actioning.”

43. In a report dated 2 October 2018, Dr Bayley says she has been asked to provide information regarding Mr Canuto’s long term mental health condition of PTSD, and its contribution to events of 2016, that is, when he was charged and convicted with fraud.

44. Dr Bayley recounts that Mr Canuto was in the army for 21 years. She expresses the opinion that “He has suffered post-traumatic stress disorder since leaving Vietnam, and this has been a chronic and enduring condition.” She opines:

    “It is my opinion these chronic symptoms of post-traumatic stress order would have impacted upon Mr Canuto’s ability to function in the role of a manager at the Yarraba Aged Care Facility. He would become, under stress, easily overwhelmed and distracted with poor organisation. It is likely that these issues would have contributed to the difficulties for which he was charged with fraud.”

45. In a report dated 20 November 2020, Dr Bayley refers to and quotes from her above-mentioned report dated 7 February 2019. She says:

    “My opinion has not changed since February 2019. I still believe Mr Canuto’s Post-traumatic Stress Disorder and Anxiety Disorder Conditions would have had an effect upon his work performance and behaviour when he was employed at Mutkin and be relevant to the charges he faced.”  

46. In evidence before the Tribunal, Dr Bayley was asked whether Mr Canuto’s conduct which led to his dismissal (and the criminal proceedings) could be explained by the diagnosed post-traumatic stress disorder. Her response was: “I don’t know if I can comment on that. I think you’re asking me to make a fairly big call there but I probably not able to discuss if I haven’t seen the full record of his criminal file”. She also said, from what Mr Canuto had told her, that his judgment was “really impaired” but whether that was because of alcohol, PTSD, anxiety “and generally everything that was going on” she was not able to say.

47. In all the circumstances, and taking into account all of what Dr Korinihona and Dr Bayley have to say, I am not satisfied Mr Canuto is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work that he was last undertaking before he made the claim or application.

    Incapacity causing loss

48. The respondent also contends that Mr Canuto does not satisfy the requirement of s 24(2A)(e) of the Act. I accept this submission.

49. Section 24(2B) of the Act provides relevantly:

    (2B)  For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

    (a)  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.

50. As the respondent points out, the applicant would be subject to criminal history checks as a prospective employee in any position approximating the remunerative work he was last undertaking as a CEO or manager of an aged care facility. The respondent refers me in this regard to the Queensland Department of Health’s web-page, specifically the reference to employment with the Department, and criminal history. I expect, however, that any entity intending to engage a person in a position of trust, such as manager or CEO, would make some enquiry about a prospective employee’s criminal history.

51. Steven Begg is the Managing Director of a Begg Consulting Pty Ltd specialising in aged care. He said that operators of aged care services, under the Aged Care Act1997, are required to ensure that all staff employed by them, or engaged through an employment agency, undergo three-yearly police checks. Key personnel under the Aged Care Act are subject to more stringent restrictions. An individual is disqualified from being Key Personnel if he or she has been convicted of an indictable offence

52. I accept the respondent’s contention that Mr Canuto does not satisfy s 24(2A)(e) of the Act. He suffers a loss of salary, wages, or earnings due to other reasons than war-caused injury or war-caused disease.

    Conclusion

53. In summary I am satisfied Mr Canuto is capable of undertaking remunerative employment exceeding an aggregate 8 hours per week as referred to in s 24(2A)(c) and s 24(1)(b) of the Veterans’ Entitlements Act. 

54. I am satisfied Mr Canuto did not cease his last remunerative work due to war-caused injury or war-caused disease alone pursuant to s 24(2A)(d) of the Act.

55. I am also satisfied he has not suffered a loss of income or wages as a result of war-caused injury or war-caused disease pursuant to s 24(2A)(e) of the Act.

56. Consequently, his application for a pension payable at the special rate must be refused.

57. The respondent’s written submissions, entitled “Respondent’s Submissions on Special Rate”, include the following:

    5.8On the material provided by the applicant it is unclear the applicant satisfies the Extreme Disablement Adjustment rate of pension.

58. The submissions go on to list matters in support of this proposition. This was not an issue which was squarely raised in the hearing. It is only obliquely raised in the respondent’s later written submissions.

59. In the circumstances it would be unfair to Mr Canuto for me to consider making this sort of finding against him.

    
    

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated: 16 December 2020

Date(s) of hearing:	23 October 2020 2 November 2020 8 December 2020
Advocate for the Applicant:	Mr D. Chalk RSL Advocate
Advocate for the Respondent:	Mr B. Williams