Carne and Repatriation Commission - [2000] AATA 760

DECISION AND REASONS FOR DECISION [2000] AATA 760

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1205

VETERANS' APPEALS DIVISION       )
           Re      David Lewis CARNE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

FURTHER DECISION
AS TO ENTITLEMENT TO INTERMEDIATE RATE OF PENSION

Tribunal Mrs Joan Dwyer, Senior Member Mr W McLean, Member Assoc. Prof. J Maynard, Member

Date24 August 2000
PlaceMelbourne

Decision      As to the issue of entitlement to intermediate rate of pension adjourned on 27 June 2000, the Tribunal decides that since 1 July 1999 Mr Carne has been entitled to the intermediate rate of pension.
  (Sgnd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS –entitlement to intermediate rate of pension - capacity to undertake remunerative work - applicant reduced his hours of part-time work - on some weeks worked more than 20 hours but usually worked less than 20 hours per week - whether applicant capable of working more than 20 hours per week

Veterans' Entitlements Act 1986 ss 23 (1), 23(2) and 28

Chambers v Repatriation Commission (1995) 36 ALD 207

Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286

REASONS FOR DECISION

24 August 2000 Mrs Joan Dwyer, Senior Member Mr W McLean, Member Assoc. Prof. J Maynard, Member

The Tribunal delivered a decision in this matter on 27 June 2000 as follows:
1.The Tribunal affirms the decision of the Repatriation Commission made 18 September 1997 which rejected Mr Carne's claim to have post traumatic stress disorder accepted as a war-caused disease under s 9 of the Veterans' Entitlements Act 1986 ("the Act").
2.The Tribunal varies the decision of the Veterans' Review Board made 11 August 1998 which increased the rate of pension payable to Mr Carne under s 22 of the Act to provide that Mr Carne is entitled to pension at 70% of the general rate with effect from 1 January 1997.
3.The Tribunal adjourns the issue of entitlement to intermediate rate of pension to allow further evidence and submissions to be received.
In its reasons for that decision the Tribunal, at paragraphs 57-65, considered the issue of Mr Carne's entitlement to intermediate rate pension under s 23 of the Act. The Tribunal said:
57. Clearly, Mr Carne can not satisfy s 24(1)(b) of the Act so as to qualify for Special rate of pension. The next question is whether he is qualified for Intermediate rate of pension under s 23 of the Act. Section 23(1) provides 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.
58       The only paragraphs which are in issue are 23 (1) (b) and (c). The respondent relied on Dr Byrne's opinion (R7) that Mr Carne would be able to work full-time in clerical work, as he did before the relocation of his employment with State Rivers and Water Supply Commission (now Rural Water Corporation).
59.      Mr Carne's work history is that after discharge he returned to his pre-enlistment position with State Rivers and Rural Supply Commission and continued working there for 26 years in total. He took a voluntary redundancy in 1993, when the office moved to Tatura. Following this he worked full-time as a bar hand and gaming supervisor/attendant at a club in Hoppers Crossing.   This involved serving drinks, working as a cashier, issuing money, validating winning tickets, serving drinks to customers playing poker machines, fixing the machines and cleaning up the room. Mr Carne's normal working week consisted of 38 to 40 hours a week.
60       In 1997 Mr Carne started his own gardening/lawn mowing business which lasted for 12 months.   He then returned to bar work. Initially, he worked full time but around June 1999 he reduced his hours to two or three shifts a week. In evidence he said that he would not do any more than two, or sometimes three, shifts because it was getting too much for him. Mr Carne told Dr Parkin (A3) that he had been getting "aggro" at work, had no patience with the staff and there was concern he might get into a fight.
61       Mr Carne agreed with Mr Herman, that working in a club can be quite stressful. He said there could be a major confrontation with drunks once a week.   He also agreed that major extensions are being done and they will increase the workload. Mr Herman asked Mr Carne whether a quieter environment, away from bars and pokies and confrontations, perhaps doing clerical work in a golf club or bowling club, would assist him remain in full time work (trans 137).   Mr Carne responded that it would not change anything.   He said he would still get headaches and dizzy spells. Further, he explained that most of the clerical work in the hospitality industry is done by the managers.   He said: "The managers do the clerical work, so there's not really any call for it, so I doubt whether I'd be able to get a job doing that".
62.      Mr Carne said that he had had the same problems when he was working as a clerical officer at the Water Commission. He was getting headaches and was feeling nauseous and was drinking heavily.   He stated "It was affecting my work and I just wasn't coping there either. … There would still be the same problems".
63.      Since reducing his hours Mr Carne said he felt more relaxed, coped better, his sleep had improved and home life was better.   As stated in paragraph 56, we find on the evidence that Mr Carne is able to undertake remunerative work for 16 to 24 hours a week.    Working part-time or intermittently does not in itself render Mr Carne eligible for pension at the intermediate rate. Section 23 (1) (b) is affected by s 23 (2) which provides:
. . .
(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)…
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if a veteran is undertaking, or capable of undertaking, that work for more than 20 hours per week.

. . .
64. The Tribunal has found that Mr Carne is capable of undertaking remunerative work for up to three shifts a week totalling 16 to 24 hours a week. On one interpretation that means that he is capable of undertaking his work for more than 20 hours per week. However it may be that if we had figures as to the actual hours worked since Mr Carne reduced his shifts, it would be apparent that on average he does not work more than 20 hours per week, and only does so on those occasions when he is asked to do so to help his employer out. If such were the circumstances it may be reasonable to find that Mr Carne, in general, is not undertaking or capable of undertaking his work for more than 20 hours a week.
65. We do not have enough information to decide whether or not Mr Carne is entitled to the intermediate rate of pension. We therefore consider it appropriate to give Mr Carne 14 days to provide documentation from his employer as to the hours he has worked since he stopped working full-time. Once that material is received both parties will have liberty to make written submissions or to apply to bring the matter on for further hearing on the issue whether Mr Carne is entitled to the intermediate rate of pension and if so from what date.

Subsequently, on 6 July 2000 the Tribunal received from the applicant's solicitor copies of Mr Carne's group certificate for the year 1999/2000 and a copy of Mr Carne's Employee Payroll History Report ("the Payroll Report") from the Hoppers Crossing Club Ltd for that financial year. Those documents have been marked and taken into evidence as exhibits A8 and A9.
An analysis of the Payroll Report shows that from 1 July 1999 to 30 June 2000, Mr Carne worked only 46 weeks. For 33 of those weeks he worked less than 20 hours. Thus he worked more than 20 hours on only 13 weeks. He never worked more than 28.5 hours in one week. That was an exceptional week with 14 hours of public holidays worked over New Year. Averaging out the total number of hours worked, 842.91, over the 46 weeks worked, Mr Carne worked an average of 18.32 hours a week. There is a question as to whether the first week ending on 4 July 1999 should be included. If not then he worked 819.7 hours for the year at an average of 17.82 hours per week during the weeks he worked.
On those figures we find that Mr Carne does not usually work more than 20 hours a week. We accept his evidence and find that when he has done so it has been not been by choice but to help his employer out.
Mr Herman, in the respondent's submission as to Mr Carne's entitlement to intermediate pension dated 28 July 2000, referred to s 28 of the Act which prescribes the matters to be taken into account in applying s 23(1)(b) of the Act. Section 28 provides:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
Mr Herman also referred to Chambers v Repatriation Commission (1995) 36 ALD 207 where their Honours Davies, Moore and Sackville JJ, said at 218 in relation to s 28:
The phrase "remunerative work" is defined in the widest terms, to mean "any remunerative activity". Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity.
. . .
The first of the three matters to which the Commission must have regard is the skills, qualifications and experience of the particular veteran. The purpose of this is to direct attention to the range of employment opportunities available to the individual, but for his or her disability: Re Thomson, at 431-3. Accordingly, the skills, qualifications and experience of the veteran are to be assessed independently of the war-caused incapacity:; Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286; 11 AAR 369 at 373 (Fed C, Full Court). It is true that a person's skills and qualifications can be diminished or lost by disease or injury. But s 28 (c) specifically directs attention to the extent to which the veteran's war-caused injury or disease has reduced his or her capacity to undertake the kinds of remunerative work that a person with the skills, qualifications and experience referred to in s 28 (a) might reasonably undertake. It is through s 28 (c) (and s 24 (1) (c)) that the effect of the war-caused injury or disease on the veteran's capacity for remunerative activity is to be taken into account.
Section 28(b) focuses attention upon the range of employment opportunities that a hypothetical person with the skills, qualifications and experience referred to in s.28(a), might reasonably undertake. Section 28(c) requires the Commission to consider the extent to which the impairment actually suffered by the veteran in consequence of the war-caused injury or disease has reduced the veteran's capacity to undertake the "kinds of remunerative work" considered to be available under the test formulated ins.28(b).
. . .
Mr Herman also relied on a passage in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 where the Full Court at pp289-290 said:
One thing which is abundantly clear is that paragraph (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open.
The respondent referred to the evidence that Mr Carne worked at the Rural Water Corporation for over 20 years and submitted that from that experience the Tribunal should find that Mr Carne had a broad range of clerical skills. There was very little evidence as to the nature of Mr Carne's work with the Rural Water Corporation. However it seems clear that Mr Carne must have some clerical skills and experience from that work.
The respondent accepted Mr Carne's evidence that he could not work more than 20 hours a week in a club environment but submitted that applying the decision in Chambers, it was appropriate to look at clerical work in the public or private sector rather than only at work in a club environment or in the hospitality industry.
Dr Byrne in his report of 23 December 1999 (R7) had written that Mr Carne should be able to work in a clerical capacity for more than 20 hours a week. He referred specifically to the possibility of Mr Carne working in a clerical position in a hotel.
Mr Carne was asked in evidence about that possibility. He said there are few such positions. Usually the manager does the clerical work (trans. p138).
Mr Carne has now been out of clerical work since he left the Rural Water Corporation in 1993. He said that his headaches and irritability were creating problems in that work.
Mr Carne was not specifically asked why, since he took a voluntary redundancy in 1993, he had not looked for clerical work again. The answer may well be that as he said he found he was not coping with that work.
The evidence is that Mr Carne worked full-time as a bar hand and gaming attendant from 1993–1997 and then for 12 months worked full-time in his own gardening/lawn mowing business. He then returned to full-time gaming attendant work and only gave it up when he found it was too much for him.
The evidence does not satisfy us that clerical work would currently be available to Mr Carne, even were it not for his war-caused disease. The fact that he has now been out of that field for seven years does in our opinion make it unlikely that Mr Carne might reasonably undertake clerical work outside the hospitality industry. We accept his evidence and find that such work within the hospitality industry is not available to him. Thus we find that the only work which is reasonably available to Mr Carne is his current employment.
We find under s 28 of the Act, accepting Mr Carne's evidence and that of Dr Byrne on this point, and noting the confirmation of that evidence in the employment records, that Mr Carne's incapacity from war-caused disease has since 1 July 1999 reduced his capacity to undertake the only remunerative work he might reasonably undertake. We have considered paragraph 23(2)(b) of the Act. We do not regard the 13 of 46 occasions when Mr Carne has worked more than 20 hours a week as indicating a capacity to undertake that work more than 20 hours a week. The legislation looks to work as a regular activity, not as an occasional event to help out an employer.
Under s 23(1)(b) of the Act we find that Mr Carne's incapacity from war-caused disease is, and has been since 1 July 1999 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. We also find under paragraph 23(1)(c) of the Act from the group certificate and Payroll Report that Mr Carne is, by reason of incapacity from war-caused disease alone prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity. We find that Mr Carne is and has since 1 July 1999 been qualified for intermediate rate pension under s 23 of the Act.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr W McLean, Member and Associate. Professor J Maynard, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  25 February 2000
Date of Decision  24 August 2000
Counsel for the Applicant        Mr D Hyde
Solicitor for the Applicant         De Marchi and Associates
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr K Herman