Chapman and Repatriation Commission
[2004] AATA 1325
•13 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1325
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/921
VETERANS' APPEALS DIVISION
Re: WILFRED ALEXANDER CHAPMAN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 13 December 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E. Fice
Member
VETERANS' AFFAIRS — Disability pension – special rate
Veterans’ Entitlements Act 1986 ss 15, 19(9), 24(2A), 24(2B), 120(4)
Repatriation Commission v Flentjar (1997) 47 ALD 67
Grant v Repatriation Commission [1999] FCA 1047
Repatriation Commission v Haskard (2002) 71 ALD 29
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
13 December 2004 Mr E. Fice, Member
1. This is an application by Mr Wilfred Alexander Chapman for review of a decision, made by the Repatriation Commission on 27 February 2001 and affirmed by the Veterans’ Review Board on 17 June 2003, which assessed Mr Chapman’s disability pension at 100% of the general rate effective from 16 January 2001. Mr Chapman did not contest the assessment of his disabilities as determined by the Repatriation Commission but rather claimed that he was entitled to payment of the pension at the special rate as provided by s 24(2A) of the Veterans’ Entitlements Act 1986 (“the Act”). In essence, Mr Chapman claimed that as a result of incapacity from war-caused diseases, he was prevented from continuing to undertake the remunerative work that he was last undertaking before he made a claim for the pension.
2. Mr Chapman was represented by Mr D. De Marchi, solicitor, and Mr G. Purcell, an advocate of the Department of Veterans’ Affairs, appeared for the Commission. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act (T1-T29) (“the T documents”), together with exhibits A1-A5 filed by Mr Chapman and exhibits R1-R10 filed by the Commission.
BACKGROUND
3. Mr Chapman served in the Australian Army from 1939 to 1949 and rendered operational service during that period.
4. Mr Chapman graduated as a civil engineer in 1951 and worked for Steel Fabrication Industries – Humes Limited, as a consulting civil engineer, from the date of his graduation until 1978. He then worked for Clive Steele Partners in Sydney from June 1978 until October 1998 when he stopped working and returned to Melbourne. Clive Steele Partners had substantially reduced its business activities in Sydney by that time and it was in the process of closing its Sydney office. At the time Mr Chapman ceased working as a consulting civil engineer, he was aged 77 years.
5. Mr Chapman has, since 20 January 2001, received a pension for the following disabilities:
·anxiety state;
·compound myopic astigmatism;
·bilateral sensorineural hearing loss;
·bilateral tinnitus;
·post traumatic stress disorder;
·alcohol abuse;
·chronic bronchitis and emphysema;
·peptic ulcer disease; and
·ischaemic heart disease.
Mr Chapman’s pension was increased to the extreme disablement adjustment rate with effect from 20 January 2001.
PARTIES’ CONTENTIONS
6. Mr Chapman contends that at the time he ceased working as a consultant civil engineer for Clive Steele Partners in 1998, he did not do so because he wished to retire, but rather he was forced to because of the illnesses he was suffering at that time. According to Mr Chapman, during the last 18 months of his working life, he had gradually reduced his working hours from full-time to part-time, working approximately 10 to 12 hours per week. This was because he was having difficulty with his eyesight, post traumatic stress disorder and ischaemic heart disease. He contends that, but for his accepted disabilities, because he enjoyed working he would have continued to do so. Because of his inability to continue working in 1998, Mr Chapman claims he has suffered loss of salary or wages.
7. The Commission contends that Mr Chapman’s inability to continue working after 1998 was due to his increased tiredness, fatigue and debility which were contributed to by a combination of factors, including the natural ageing process, as well as the effects of his war-caused disabilities. For that reason, the Commission contends that Mr Chapman does not satisfy the requirements of s 24(2A) of the Act.
CONSIDERATIONS
8. The only question before the Tribunal is whether Mr Chapman satisfies the requirements set out under s 24(2A) of the Act so as to entitle him to the special rate of pension. There is no dispute about his accepted disabilities or the fact that the Tribunal has jurisdiction to review this matter.
9. Section 24(2A) of the Act provides:
(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:
(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.
10. It is agreed between the parties that Mr Chapman meets all of the criteria for a special rate of pension set out in s 24(2A), except for sub-paragraphs (d) and (e).
11. Also, and this was not in dispute, the Tribunal must, in making a determination or decision in respect of a matter arising under the Act including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV of the Act, decide the matter to its reasonable satisfaction (s 120(4)). In determining whether Mr Chapman has meet the requirements of s 24(2A), the Tribunal is required to consider whether Mr Chapman has done so during the assessment period, which is defined under s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined (see Repatriation Commission v Flentjar [1997] 47 ALD 67, and Grant v Repatriation Commission Federal Court of Australia [1999] FCA 1047).
12. Section 24(2B) of the Act, in so far as it is relevant, 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 in dispute that Mr Chapman’s last paid work was as a "consultant civil engineer”. That employment ceased on 9 October 1998, at which time he was 77 years of age.
14. The assessment period for Mr Chapman commenced on the day he made an application for an increase in pension under s 15 of the Act. That date was 16 January 2001. Accordingly, the assessment period is the period starting on 16 January 2001 and ending when Mr Chapman’s claim is finally determined.
15. The requirement under s 24(2A)(d), that the incapacity from war-caused injury or war-caused disease or both, alone, prevented the veteran from undertaking remunerative work that the veteran was last undertaking before he or she made the claim or application, appears to be somewhat narrower than the requirement for veterans who are under the age of 65 and who make an application for a special rate of pension under s 24. As the Full Court of the Federal Court in Grant v Repatriation Commission [1999] FCA 1047 pointed out, reference under s 24(1)(c) to “remunerative work the veteran was undertaking” has been construed as referring to the type of work that the veteran previously undertook. By way of contrast, under s 24(2A)(d), the focus is upon the last paid work that the veteran was undertaking before he or she made the claim. Accordingly, the focus of this enquiry must be upon whether Mr Chapman, because of his war-caused diseases alone, was prevented from continuing his previous remunerative work as a consulting civil engineer. (See also Repatriation Commission v Haskard [2002] 71 ALD 29). In arriving at its decision, the Tribunal is required to take into account all other matters which may affect Mr Chapman’s ability to continue to undertake work as a consulting civil engineer during the assessment period. That would include taking into account any other disabilities which he suffered from during the relevant period and which may have played some part in his inability to continue undertaking his previous remunerative work. Although dealing with s 24(1)(c) of the Act, the Full Court in Repatriation Commission v Hendy [2002] FCAFC 424 said, at paragraph 37:
… The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the work force and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. …
There seems to be no good reason why the same considerations are not relevant when considering s 24(2A)(d).
16. In addition to his accepted war-caused disabilities, Mr Chapman suffers from the following rejected non-war-caused disabilities:
·presbyopia;
·hypertension;
·tension headaches; and
·hiatus hernia.
Mr Chapman also suffers from the following conditions, which have either not been claimed or determined as to whether they were war-caused:
·dermatitis;
·thoraco – lumbar degeneration;
·diverticular disease /sigmoid bowel polyps;
·diarrhoea /faecal incontinence;
·increasing problem with memory orientation (cognitive impairment);
·various factures of the limbs;
·depression; and
·panic attacks.
17. Mr Chapman said in evidence that during the last 18 months of his working life with Clive Steele Partners, he was only involved in minor jobs, as Clive Steele Partners was in the process of closing its Sydney office. At that time, there were 3 employees working from the Sydney office but gradually 2 employees ceased working until he was the only employee remaining at that office.
18. Mr Chapman said that he enjoyed working and that he had no intention of retiring in 1998. In fact, he said that he did not retire but that he was sick and that was the reason for ceasing remunerative employment. As Mr Chapman was involved in supervising the construction of large shopping centres, he said he frequently had to travel up to 200 kilometres per day, in Sydney traffic. He found this both stressful and tiring. Dr C. Goods, who examined Mr Chapman on 25 July 2000, described him as a very frail 79 year old man. At the time of giving evidence, Mr Chapman was 83 years old and was too frail to attend the Tribunal. He gave evidence by telephone.
19. In his evidence to the Veterans’ Review Board on 17 June 2003, when asked what happened around 1998 which made it impossible for him to continue working despite the fact that he had managed his physical and mental problems for many years, Mr Chapman said, “Well, age came into it. I lost all – I lost a lot of strength and the mental condition started to deteriorate rapidly. I’m abdominally(sic) and just got too much and I felt I wasn’t doing what I was paid to do, which was thoroughly – I wasn’t, you know, I didn’t have the enthusiasm that I used to have when I was younger.”
20. Before the Veterans’ Review Board Mr Chapman claimed that it was mainly stress, leading to a worsening of his anxiety condition, which caused him to cease performing his work as a consultant civil engineer. However, in his evidence to the Tribunal Mr Chapman, when asked how his anxiety state affected his work, said that it didn’t. He said that he just kept on working. He emphasized that his anxiety problem did not affect his work. However, he did say that he was getting older and slower and tired at the end of the day especially due to the travel involved in the Sydney area.
21. Mr Chapman said that when he left Sydney he was not replaced and the firm closed its offices. Before the Veterans’ Review Board he described the nature of his work as attending at shopping centres where he would start early because he had to be there to inspect every bit of reinforcement, extra steel work and the pouring of concrete, as well as determining that the concrete was of the correct strength as set out in documents provided by the concrete provider. He said that he could not just walk onto the site, look at the material and then walk away. He said that he had to stay while the concrete pour continued and he never knew how long it would take. He said that the difficulties in performing his duties were due to the long hours and driving in the Sydney traffic to get to various job sites. In particular, he said that it made him very tired and that he had visited his doctor to see if he could obtain something which would give him more energy to conduct his work.
22. Mr Chapman said that when he left Sydney he attended the Melbourne office of Clive Steele Partners on an irregular basis. He said that he only “pottered about” and that he was not paid for any work that he did. He said that he moved to Melbourne because of the closure of the office in Sydney and that it was not likely that anyone would give a person of his age a job. He also said that construction jobs were changing as buildings are now essentially multi-rise structures and large construction companies employed their own staff and did not engage consulting engineers. He said that consulting engineers as a profession were disappearing, due mainly to the fact that engineers were now employed by larger firms which could afford the insurance.
23. Mr Chapman said that he was computer literate and that his mental capacity had not deteriorated. He said Clive Steele Partners had not offered him work in Melbourne as the Melbourne company was not employing engineers.
24. Dr J. Hofland, a consultant in rehabilitation medicine, examined Mr Chapman on 15 December 2003 and provided a report and gave oral evidence at the hearing. She said in her report that at the time she examined Mr Chapman, he was accompanied by his son. She said that Mr Chapman was at times vague and frequently deferred to his son, who referred to notes for further information. In addition, Mr Chapman’s son reported that his father has had increasing problems with his memory since he retired especially in the year preceding her examination, and that he became disorientated at times and no longer functioned as well on a day to day basis. Dr Hofland said in evidence that Mr Chapman was very vague and frail, weighing about 59 kilograms. She said that he was frequently unable to provide answers to her questions because of his memory problem. She said that his cognition may have been impaired. However, in a report dated 29 January 2001, Dr P.G. Linton stated that he was not aware of any cognitive disability at the time that he saw Mr Chapman in 2000. Dr Linton said that he was aware that Mr Chapman had suffered a fall and confirmed Mr Chapman’s frailty in 2000. He confirmed Mr Chapman's cognitive function appeared to be fine and that his memory was better than his own. The falls that Mr Chapman suffered were in January 2000 and in February 2002.
25. Dr R. Horsley examined Mr Chapman on 14 January 2004, at which time Mr Chapman was 83 years of age. In a report on that date Dr Horsley said that Mr Chapman had a walking tolerance of a couple of hours, a sitting tolerance of a couple of hours and that he tended to drive locally as he had ongoing stiffness and discomfort. In Dr Horsley’s opinion, the reason for Mr Chapman’s increasing tiredness was multi-factorial. She pointed to matters such as his nutritional status and his long standing alcohol abuse; his ischaemic heart disease; and his chronic bronchitis and emphysema, which she said is mild. She said that his tiredness seems to be more cardiac in origin. In addition, she said that at 83 years of age, the natural ageing process increased the level of fatigue and that this was also a component.
26. Dr Horsley’s opinion was that Mr Chapman was incapable of undertaking remunerative work for periods of more than 8 hours. She was of the view that Mr Chapman's primary barrier to return to work was his level of tiredness and general feeling of “unwellness”, although it was her opinion that there was a component of his tiredness related to his nutritional status secondary to alcohol abuse, a more significant factor was his age. It was also Dr Horsley’s opinion that despite Mr Chapman's educational background and working history, his time out of the work force, his age and general appearance of debility would prevent him from being attractive to an employer.
27. Having reviewed all of the evidence in this matter, I am of the opinion that Mr Chapman was unable to continue to undertake the remunerative work that he was last undertaking, before he made an application under s 15 of the Act for an increase in the rate of pension, because of his accepted war-caused conditions as well as other factors, such as his fatigue and debility which have been contributed to by the ageing process. Also significant is the fact that he had been out of the work force for a period of 2 years prior to his application and that, at 79 years of age, as he was during the relevant period, it was highly unlikely that he would have been employed as a consulting engineer. There are other factors mentioned by Mr Chapman, such as the declining use of consulting civil engineers due to the fact that major construction work was now conducted by large firms with their own employee engineers. He admitted that his age would be against him being employed in such a role.
CONCLUSIONS
28. Having found that Mr Chapman's inability to continue to undertake his last paid work is attributable to war-caused factors as well as other factors, it is plain that Mr Chapman does not meet the alone test set out in s 24(2A)(d) of the Act. For Mr Chapman to be eligible for a special rate of pension under s 24, he is required to meet all of the provisions set out in sub-paragraph (2A). Therefore, Mr Chapman does not qualify for a special rate of pension.
29. Because I have found that Mr Chapman does not satisfy the requirements of s 24(2A)(d) of the Act, it is unnecessary for me to examine whether he fulfils the requirements set out in s 24(2A)(e).
30. I affirm the decision of the Repatriation Commission made on 22 February 2001.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E, Fice, Member
(sgd) Catherine Lake
ClerkDate/s of Hearing 13 October 2004
Date of Decision 13 December 2004
Solicitor for the Applicant Mr D. De Marchi, De Marchi and AssociatesSolicitor for the Respondent Mr G. Purcell Advocacy Section,
Department of Veterans’ Affairs
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