Clearihan and Repatriation Commission (Veterans' entitlements)
[2019] AATA 1339
•18 June 2019
Clearihan and Repatriation Commission (Veterans' entitlements) [2019] AATA 1339 (18 June 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6423
Re:Keith Clearihan
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member K Parker
Date:18 June 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.................[sgd].......................................................
Member K Parker
VETERANS’ ENTITLEMENTS – application for special or intermediate rate of pension –veteran served in Vietnam – meaning of “totally and permanently incapacitated” – war-caused skin cancer, prostate cancer and sequelae psychological conditions – “alone test” – consideration of other preventative factors such as age, voluntary redundancy package and non-war-caused spinal condition – improvement in veterans’ capacity for work during the assessment period – “loss of salary and wages” requirement not met - not all eligibility criteria met – eligibility for special rate or intermediate rate of pension not met - decision affirmed
Legislation
Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017 (Cth)
Veterans’ Entitlements Act 1986 (Cth)Cases
Re Apthorpe and Repatriation Commission (1986) 9 ALN N157
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] 1 FCR 354
Cavell v Repatriation Commission (1988) 9 AAR 534
Re Easton and Repatriation Commission (1987) 6 AAR 558
Leigh v Repatriation Commission [2006] FCA 395
Lucas v Repatriation Commission (1986) 69 ALR 415
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Reid (1990) 95 ALR 728
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins [2015] FCAFC 10
Richmond v Repatriation Commission (2014) 140 ALD 380
Smith v Repatriation Commission [2014] FCAFC 53
Summers v Repatriation Commission [2014] FCA 608
Summers v Repatriation Commission [2015] FCAFC 36Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
REASONS FOR DECISION
Member K Parker
18 June 2019
INTRODUCTION
The Applicant, Mr Keith Clearihan, was conscripted and served in the Australian Army between 1965 and 1967. He was deployed to Vietnam in 1966 for about 12 months, primarily based at Nui Dat as a signalman with the Signal Squadron and the 6 Royal Australian Regiment (6RAR).
Mr Clearihan was born in March 1945 and is 74 years old. He has developed a number of physical and psychological conditions, most of which have been accepted by the Department of Veterans’ Affairs (DVA) as being “war-caused”.
In 2013 Mr Clearihan applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (Act). This claim was accepted and he has been paid a general rate of pension under the Act since his claim was accepted.
In 2015 Mr Clearihan applied for an increase to his rate of pension. The Commission decided to increase his general rate of pension to the rate applicable to 80 per cent impairment. The Commission was not satisfied that Mr Clearihan was entitled to receive either the “special rate” or “intermediate rate” of pension under the Act. Mr Clearihan sought review of this decision by the Veterans’ Review Board (VRB) which affirmed the Commission’s decision. Mr Clearihan now seeks review of the VRB decision by this Tribunal.
Mr Clearihan initially called the following witnesses in support of his application:
(a)Two medical witnesses:
(i)Dr Robert Moffitt, his treating general practitioner; and
(ii)Dr Daryl Joon, his treating radiation oncologist; and
(b)Two lay witnesses:
(i)his wife, Mrs Pauline Clearihan, in support of her witness statement dated 22 November 2016;[1] and
(ii)Mr Trevor Allan, Mr Clearihan’s former (line) manager from CitiPower, in support of his witness statement dated 10 October 2017.[2]
[1] Lodged with the Tribunal on 14 December 2016 – refer Exhibit “A2”.
[2] Lodged with the Tribunal on 17 October 2017 – refer Exhibit “A3”.
Mr Clearihan also lodged a further undated witness statement by Ms Miranda Toohey, a Human Resources (HR) employee from CitiPower.[3] The Commission did not require Ms Toohey to be called for cross-examination. The documentation attached to Ms Toohey’s statement was an incomplete set of the relevant internal correspondence that took place within CitiPower in respect of the cessation of Mr Clearihan’s employment. At the request of the Tribunal, Mr Clearihan’s legal representatives sought to obtain from CitiPower a complete set of such correspondence and relevant documents to shed greater light on the circumstances surrounding the cessation of Mr Clearihan’s employment with CitiPower. They were obtained and produced as Exhibits “A8” and “A9” on the third day of the hearing on 7 September 2019.
[3] Refer Exhibit “A4”.
This application was initially heard on 4 and 5 June 2018. As the evidence unfolded, it became apparent that Mr Clearihan’s psychological conditions may have also had an impact on his ability to undertake remunerative work at different times. The Tribunal asked Mr Clearihan’s legal representatives why Dr Arthur Velakoulis, a psychiatrist who had treated Mr Clearihan, had not been called as a witness. On the second day of the hearing (on 5 June 2018), after taking instructions, counsel for Mr Clearihan indicated to the Tribunal as follows:[4]
Mr Kenneally: I understand the reason he wasn’t called was the view that the evidence of Dr Moffitt would cover that and that the key issue was his prostate cancer. However, having discussed the matter with my client and my instructor, the applicant would seek leave to have time to call Dr Velakoulis to give evidence on a separate day.
[4] Refer Transcript for 5 June 2018, P-162 at lines 24 to 28.
The Tribunal granted Mr Clearihan’s request to call Dr Velakoulis. Upon doing so, the Repatriation Commission sought to call Dr Gregory Schultz, a consultant psychiatrist, who examined Mr Clearihan on 20 April 2017. These psychiatrists gave evidence when the hearing resumed on 7 September 2018.
The Tribunal has considered the written submissions lodged by both parties in this application including:
(a)Mr Clearihan’s Statement of Facts and Contentions dated 14 August 2017 (Mr Clearihan’s Submissions);
(b)the Commission’s Statement of Facts and Contentions dated 4 September 2017 (Commission’s Submissions);
(c)the Commission’s Amended Statement of Facts and Contentions lodged with the Tribunal on 5 June 2018 (Commission’s Amended Submissions); and
(d)Mr Clearihan’s Supplementary Contentions of Fact & Law dated 3 September 2018 (Mr Clearihan’s Supplementary Submissions); and
(e)the Commission’s “List of the sections of the Veterans’ Entitlements Act in dispute” lodged with the Tribunal on 4 September 2018 (Commission’s List of Sections in Dispute).
At the commencement of the first day of the hearing on 4 June 2018, the Tribunal enquired of Mr Clearihan’s counsel whether Mr Clearihan’s application was confined to whether he should be paid the special rate of pension, as indicated in paragraph [1] of Mr Clearihan’s Submissions.[5] Initially, Mr Clearihan’s counsel said that this was correct. However, as the hearing progressed, the basis upon which Mr Clearihan put his case was altered, such that it was contended that if the Tribunal was not satisfied that Mr Clearihan was eligible for a special rate, in the alternative, the Tribunal “can and must” consider whether Mr Clearihan is eligible for a temporary special rate under s 25 of the Act, or the intermediate rate of pension under s 23 of the Act.[6]
[5] Refer Transcript 4 June 2018 P-3 at lines 34-45.
[6] Refer paragraph [2] of Mr Clearihan’s Supplementary Submissions.
For the reasons set out below, the Tribunal is not satisfied that Mr Clearihan is eligible for the special rate (including for a temporary period) or intermediate rate of pension at any time during the assessment period, which the parties agreed extended from the date of Mr Clearihan’s application on 24 July 2015 to the date of this decision (Assessment Period).
Accordingly, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Incapacitated veterans may claim a pension from the Commonwealth
Section 13 of the Act provides that the Commonwealth will be liable to a pay a pension in accordance with the Act to a veteran who is incapacitated from a war-caused injury or disease. The parties agree that Mr Clearihan was a veteran and that he was generally incapacitated from a war-caused injury or disease and therefore entitled to be paid a general rate of pension.
Section 14(3) of the Act prescribes how a claim for a pension is to be made. Section 14(4) provides that subsection (3) must not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
Rates of pension
A pension under the Act may be paid to a veteran at:
(a)a general rate of pension under s 22 of the Act based on the veteran’s assessed degree of incapacity. The veteran may also be eligible to receive a special disablement adjustment under s 22 of the Act;
(b)an intermediate rate of pension under s 23 of the Act; or
(c)a special rate of pension under s 24 of the Act (or for a temporary period under s 25).
Veterans may apply for an increase to their rate of pension
Section 15 of the Act allows for a veteran to apply for an increase to their rate of pension.
Eligibility requirements for special rate of pension
Section 24 of the Act contains the eligibility criteria for a veteran to be paid a “special rate” of pension under the Act.[7]
[7] Refer subsection 24(4) of the Act, subject to subsections 24(5), (5A) and (6) of the Act.
Section 24(2A) is relevant to Mr Clearihan as he had turned 65 years old before the date of applying for an increase to his rate of pension. Section 24(2A) of the Act provides as follows:
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.
As referred to in s 24(2A)(c), subsections (1)(a) and (1)(b) provide as follows:
(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;
Section 24(2B) specifies two circumstances where a veteran is taken not to have suffered a loss of salary or wages for the purposes of s 24(2A)(e), as set out below:
(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.
Eligibility for the special rate of pension for a temporary period
Section 25 allows for the temporary payment of the “special rate” of pension to a veteran for a specific period (to be determined by the Commission, or the Tribunal upon review), provided the following requirements are met:
(1) Where the Commission is satisfied that:
(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate that would have been applicable under subsection 24(4), (5), (5A) or (6) if section 24 applied to the veteran.
(3) The Commission may, under this section:
(a) determine a period that commenced before the date on which the determination is made; and
(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
Eligibility requirements for the intermediate rate of pension
If neither s 24 nor s 25 applies, s 23 of the Act contains the eligibility criteria for a veteran to be paid an “intermediate rate” of pension under the Act.[8]
[8] Refer subsection 23(4) of the Act.
Section 23(3A) is relevant to Mr Clearihan as he had turned 65 years old before the date of his application. Section 23(3A) provides as follows:
(3A) 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) (as affected by subsection (2)) 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 24 or 25 does not apply to the veteran.
As referred to in s 23(3A)(c), subsections (1)(a) and (1)(b) provide as follows:
(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;
Section 23(2) deals further with the requirements under subsection 23(1)(b), as follows:
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.
Section 23(3B) specifies three circumstances where a veteran is taken not to have suffered a loss of salary or wages for the purposes of s 23(3A)(e) above, as follows:
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) 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; or
(c) 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.
Assessing “capacity to undertake remunerative work”
For both the special and intermediate rates of pension, s 28 of the Act confines the matters to which the Commission (and this Tribunal upon review) must have regard, in deciding whether the veteran had a “capacity to undertake remunerative work”, as follows:
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).
Claims assessment process
Section 19 sets out the procedure for assessing claims by veterans to receive a pension or increase in the rate of a pension, as reproduced in Appendix A.
Assessment period for this application
As mentioned above, Mr Clearihan contended that the relevant period to be examined is the date of application to the Commission on 24 July 2015 until the date of this Tribunal’s decision (Assessment Period). This was not in dispute and the Tribunal finds accordingly.
ISSUES
The issues to be determined in this application are whether Mr Clearihan met the eligibility criteria for either the special rate (either under s 24, or for a temporary period under s 25) or the intermediate rate of pension under s 23 the Act.
Issues arising in deciding whether Mr Clearihan was eligible for the special rate
For Mr Clearihan, who had turned 65 before making an application to increase his rate of pension, to be eligible to receive the special rate, he is required to meet all of the criteria under subsections 24(2A)(a) to (h) inclusive at some point during the Assessment Period.
At the outset, the Tribunal notes that the Commission has accepted that the requirements under the following subsections of s 24(2A) of the Act are met by Mr Clearihan.[9] Specifically:
(a)s 24(2A)(a) – Mr Clearihan made a claim under s 14 and subsequently, an application for an increase in his pension under s 15;[10]
(b)s 24(2A)(b) – Mr Clearihan had turned 65 before the application was made;[11]
(c)s 24(1)(a) (which is applicable by operation of the first limb of s 24(2A)(c)) – Mr Clearihan’s incapacity from war-caused disabilities has been determined to be at least 70 per cent (in fact, it was determined to be 80 per cent);[12]
(d)s 24(2A)(f) – Mr Clearihan was undertaking his last paid work after he turned 65;[13] and
(e)s 24(2A)(g) (as worded prior to 1 July 2017) – Mr Clearihan had been working as an employee for the same person, i.e. CitiPower, for a continuous period of at least ten years and that employment began before he turned 65.[14]
[9] Refer to the Commission’s List of Sections in Dispute.
[10] The Commission lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) on 20 December 2016. Refer T-Documents T5, page 3 and T2, page B2.
[11] Refer T-Documents T5, page 3.
[12] Refer T-Documents T11, page 43.
[13] Refer [48] of these Reasons for Decision.
[14] The present wording of subsection 24(2A)(g) applies to claims and applications made on or after 1 July 2017 being the date of commencement of the Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2017 (Cth).
However, the Commission does not accept that the requirements under the remaining subsections of s 24(2A) are met. Those requirements are cumulative, so if any one of them is not met it will render Mr Clearihan ineligible for the special rate of pension under s 24.
Accordingly, the Tribunal has considered the following issues in deciding whether Mr Clearihan is entitled to the special rate of pension:
(a)is the requirement under s 24(1)(b) of the Act met? (applicable by operation of the second limb of s 24(2A)(c))? (“totally and permanently incapacitated” requirement)
(b)is the requirement under s 24(2A)(d) of the Act met? (“alone test” requirement)
(c)is the requirement under s 24(2A)(e) met? (“loss of salary or wages” requirement) from which two sub-issues arise:
(i)did Mr Clearihan cease to undertake his previous clerical work for reasons other than his incapacity from war-caused conditions?
(ii)is Mr Clearihan prevented from engaging in this work for some other reason?
Issues arising in deciding whether Mr Clearihan was eligible for the special rate for a temporary period
If Mr Clearihan was not eligible for the special rate under s 24, the Tribunal will need to decide whether he was “temporarily” incapacitated from the war-caused injury or disease or both; and whether the requirements of s 24 are otherwise met, in order to assess whether he is entitled to receive the special rate for a temporary period under s 25. If so, the Tribunal must also decide what period falling within the Assessment Period, Mr Clearihan’s incapacity was likely to continue.
Issues arising in deciding whether Mr Clearihan was eligible for the intermediate rate
If Mr Clearihan was not eligible for the special rate under s 24 or 25, the Tribunal will consider whether he was eligible for an intermediate rate of pension under s 23.
For Mr Clearihan, who had turned 65 before making an application to increase his rate of pension, to be eligible to receive the special rate of pension under s 23, he is required to meet all of the criteria under subsections (3A)(a) to (h) inclusive, at some point during the Assessment Period. Many of those requirements mirror the requirements under s 24(2A). The Commission has accepted that the requirements under subsections (3A)(a), (b), (f), (g), and the first limb of subsection (3A)(c) being s 23(1)(a), were met by Mr Clearihan.[15]
[15] Refer to the Commission’s List of Sections in Dispute.
However, the Commission does not accept that the requirements under the remaining subsections of s 23(3A) were met. Those requirements are cumulative so if any one of them is not met, it will render Mr Clearihan ineligible for the intermediate rate of pension under s 23.
Accordingly, the Tribunal has considered the following issues in deciding whether Mr Clearihan is eligible to receive the intermediate rate:
(a)is the requirement under s 23(1)(b) of the Act met (applicable by operation of the second limb of s 23(3A)(c))? (incapacitated otherwise than on a part-time basis or intermittently requirement)
(b)is the requirement under s 23(3A)(d) of the Act met? (the alone test requirement)
(c)is the requirement under s 23(3A)(e) met? (the loss of salary or wages requirement) from which two sub-issues arise:
(i)did Mr Clearihan cease to undertake his previous clerical work for reasons other than his incapacity from war-caused conditions?
(ii)is Mr Clearihan prevented from engaging in this work for some other reason?
FACTUAL BACKGROUND
History of Mr Clearihan’s claim and applications
On 16 September 2013 Mr Clearihan submitted a claim for the disability pension under the Act in respect of “depression” and “prostate cancer”.[16]
[16] Refer Exhibit “A10”.
On 24 July 2015 Mr Clearihan made an application for an increase to his rate of disability pension for previously accepted disabilities.[17] This application provided details of a new disability of “impotence”. Mr Clearihan also claimed that his previously accepted disabilities had become worse since they were last assessed.
[17] Refer T-Documents T5.
DVA’s records show that Mr Clearihan’s “accepted” conditions are listed as:[18]
(a)non-melanotic neoplasm of the skin;
(b)malignant neoplasm of the prostate;
(c)generalised anxiety disorder;
(d)major depressive disorder; and
(e)erectile dysfunction.
[18] Refer DVA’s Veteran Community Details Report attached to the s 37 report lodged with the Tribunal on 20 December 2016 attaching the T-Documents.
On 26 November 2015, a delegate of the Commission made a decision to increase Mr Clearihan’s rate of pension to 80% of the general rate, effective from 24 April 2014 (Original Decision).[19] The delegate considered whether Mr Clearihan should be paid the special or intermediate rate of pension. The delegate decided that he was not eligible for either of those higher rates, for the following reasons:[20]
(a)he applied for redundancy and was made redundant by CitiPower on 5 December 2014;
(b)Dr Velakoulis stated, in a medical report dated 29 March 2015, that:
(i)Mr Clearihan had told the doctor he was “retired from work”; and
(ii)from a psychiatric perspective, Mr Clearihan remained capable of continuing his clerical work for CitiPower, had he not retired; and
(c)a discussion with the Commission’s contracted medical officer during which it was “agreed that the prostate cancer would not solely prevent Mr Clearihan from employment, but more his age and the fact he was retired”.
[19] Refer T-Documents T11.
[20] Refer T-Documents T11/48.
On 29 January 2016 Mr Clearihan lodged an application for review of the Original Decision with the VRB, seeking to be paid the special rate of pension.[21]
[21] Refer T-Documents T12.
On 7 July 2016 Dr Robert Moffitt, treating general practitioner, issued a “Work Ability Report, Department of Veterans’ Affairs” in respect of Mr Clearihan.[22] Dr Moffitt stated in this report that in his opinion, Mr Clearihan was “unable to perform any form of gainful employment”.[23] Dr Moffitt also stated that due to all of Mr Clearihan’s accepted disabilities he was unable to work as he was “physically weak and incapable for any physical or manual work” and due to his emotional state he was “unable to work with others, has poor concentration and becomes anxious and depressed”.[24] Dr Moffitt stated that in his opinion, Mr Clearihan’s “accepted disabilities are permanent and will become worse with time”.[25]
[22] This document was date-stamped as having been received by the VRB on 6 July 2016.
[23] Refer T-Documents T15/79.
[24] Ibid.
[25] Refer T-Documents T15/80.
The VRB made a decision on 27 September 2016 affirming the Original Decision. In making this decision, the VRB found as follows:[26]
24. The evidence before the Board indicates the veteran’s workplace was restructured, with the loss of most of the positions of the type occupied by the veteran. Although the veteran was on some form of sick leave at that time, he was given the option of applying for a redundancy package or applying for an alternative position. The veteran chose to apply for a redundancy and his application was approved. The Board is of the opinion the veteran ceased work for reasons other than his incapacity from service related disabilities.
25. Accordingly, section 24(2B) operates to deem the veteran not to have suffered a financial loss for the purposes of paragraph (e) of section 24(2A) of the Act. As the criteria imposed by section 24(2A) of the Act are cumulative, an inability to satisfy one of these criteria means that the veteran is unable to meet the requirements of eligibility for pension at the Special Rate.
26. The criteria for the Intermediate Rate are the same as for the Special Rate, except that the veteran must be unable to work 20 hours per week. The Board’s findings in relation to the application of section 24(2B)(a) and section 24(2A)(e) also apply to section 23(3B)(a) and section 23(3A)(e) and veteran accordingly cannot satisfy the requirements of the latter provisions.
[26] Refer T-Documents T2/B7.
On 28 November 2016 Mr Clearihan lodged an application for review by the Veterans’ Appeals Division of the Administrative Appeals Tribunal (the Tribunal).[27]
[27] Refer T-Documents T1.
Mr Clearihan’s work history
Mr Clearihan stated that he started employment at CitiPower in early 2000 at the age of 54, working as a temporary officer.[28] Mr Clearihan worked for CitiPower’s predecessor, the State Electricity Commission (SEC), from about 1961. When Mr Clearihan started work at CitiPower, he said his role was to process documents “because they had a huge backlog”. The documents related to meter changes, system changes and name changes.
[28] Mr Clearihan commenced employment at CitiPower on 20 August 2001 according to an email by HR representative, Ms Toohey, dated 5 November 2014 – refer Exhibit “A9”.
Over time, Mr Clearihan said he was moved into the New Connections area of CitiPower. As the name suggests, New Connections arranges for new connections of brand new commercial, industrial or residential premises. He said the connections were established from “virtually a vacant block”. He said that “we organise the final connection and process it into the system”.
Mr Clearihan said he handled “almost anything” and “took turns working on the front counter”. He said he became a customer service officer and dealt with electrical contractors, customers and liaised with the field people. His daily duties would involve taking telephone calls from customers, electricians or other people in the first hour of the day and dealing with those enquiries. He said he would also receive calls during the day from other people who had his telephone number. He said he would spend the day arranging paperwork and field visits or contacting customers or retailers or field people who were mainly contractors.
Mr Clearihan’s ordinary hours of work in this position at CitiPower were 37.5 hours per week.
Mr Clearihan said he “loved” his work and that it was “the best job” he had had. He said he liked working with the field people because, “they were down to earth”. He also said he could relax while doing the work and, unlike at head office, he was not concerned about “who was watching him or whatever”. He considered that he was good at his job. He worked long hours for which he was not paid, because he said he “could not stand having this huge backlog”. He said that in about 2004 or 2005 he starting getting into work at 6am even though his scheduled start time was 7.30am. He said he finished at about 4pm, with 40 minutes for lunch. He said he accrued a day off every two weeks; that is, it was nine-day fortnight but he said he worked more than that. He said, “…I didn’t care. It’s what suited me. I was happy doing that”.
Mr Clearihan said he finished working when he was diagnosed with prostate cancer, which was in about July 2013. He was 68 years old at this time. Mr Clearihan said, “…it was the aggressive type and they offered me alternatives; surgery, radiotherapy or hormone”. He said he opted for surgery. He said the other options remained for “down the track”. When asked whether he had any plans to retire at about that time, Mr Clearihan said:
No, people would often ask me that because, you know, they’d look at you and say, well, you know, you must be thinking about giving it away soon and I said, no - my indication was at the time as long as I think I’m doing a good job, and as long as people want me, I’m happy to stay and I really enjoyed the work.
Diagnosis of skin cancer and prostate cancer in 2013
The Tribunal notes:
(a)a letter dated 17 June 2013 by Dr Edward Upjohn, dermatologist, indicating that Mr Clearihan underwent Mohs micrographic surgery on that day to treat recurrent skin cancer, that is basal cell carcinoma (BCC), on the left neck at two sites;[29]
(b)a letter dated 1 July 2013 by Mr John Rogerson, North Eastern Urology Pty Ltd, to Dr Moffitt to report that a digital rectal examination of Mr Clearihan had showed a small firm prostate and he recommended that a trans-rectal ultrasound guided prostatic biopsy take place;[30]
(c)a letter by Mr Dave Gray, a prostate cancer specialist nurse at the Olivia Newton-John Centre, Austin Health, to Dr Moffitt stating that Mr Clearihan underwent a trans-rectal ultrasound of his prostate and biopsy on 7 August 2013 which showed prostate cancer;[31]
(d)a letter dated 26 August 2013 authored by Dr Kiran Manya, Registrar, Urology Clinic, Austin Health, to Dr Moffitt to report that Mr Clearihan’s prostate biopsy had shown a “Gleason 3 + 4 = 7” prostate cancer in his left apex and showed mixed ductal and acinar adenocarcinoma, with bleeding “Gleason 4 + 3 = 7” in his left mid-zone and base. The doctor also stated that Mr Clearihan was generally well for his age with his only main co-morbidity being hypertension, noting however that he also recently had some squamous cell cancers removed from his face;[32] and
(e)Mr Gray’s letter referred to in paragraph (c) above, which also referred to the review meeting with Dr Kiran Manya (Urology Registrar) and Mr and Mrs Clearihan on 26 August 2013. This letter stated that Mr Clearihan was due to return to the Uro-Oncology clinic on 11 September 2013 to learn the results from staging CT scan and bone scan and to “possibly decide on a treatment option”. The letter indicated that Mrs Clearihan seemed shocked and upset at the result from the biopsy.[33]
[29] Refer Exhibit “R6”, page 1.
[30] Ibid at page 3.
[31] Refer Exhibit “R7” at page 137.
[32] Ibid at page 139.
[33] Refer Exhibit “A10”.
Mr Clearihan said he was “shattered” when he received news of the diagnosis. He said he felt this way because he had “so many skin cancers over a number of years removed”. After receiving the diagnosis, Mr Clearihan said he went to doctors and said, “I want a week off, I can’t go back. I was shaking, I was in tears and I got in the car and I rang the then supervisor and I told him and I burst into tears on the phone… ”.
The Tribunal notes a further letter authored by Mr Gray on 11 September 2013 to Dr Moffitt, reporting as follows:[34]
Mr Angus had the pleasure of telling Mr and Mrs Clearihan (along with their daughter Karen) that the scans didn’t show evidence of metastatic disease, thus he will proceed to have definitive treatment. The family were delighted to hear this, and rightly so. Mr Clearihan has decided he’d like to have his prostate removed, and he has consented to having a laparoscopic radical prostatectomy. This will be done in about 4-6 weeks, which works well, as Mr and Mrs Clearihan are heading off to Sri Lanka for a couple of weeks as of this Friday.
[34] Exhibit “R6”.
Prostatectomy performed in October 2013
Mr Clearihan said he had keyhole surgery to remove his prostate. The hospital records indicate this procedure took place on 17 October 2013.[35] He said that after the surgery he had “general soreness” and due to this, he had trouble walking. He said he had a catheter in for about three weeks or a month which was “shocking”. He said he gave himself a daily injection for about a month to prevent blood clots. He said he had to go to the toilet a lot during the day and “even at night”. He said that a couple of times he had “to wear a pad, just in case”.
[35] Ibid.
Mr Clearihan said that he would become irritable and edgy before visiting the doctor because he said, “…every time I come here, something bad happens and – so, I was relieved when I’d left… ”.
Initial plan to return to work in January 2014 after the surgery
After the surgery, Mr Clearihan said his plan was to recover, get over it and to eventually go back to work if he felt up to it. Mr Clearihan attended a work Christmas function and attended the CitiPower Richmond office. He said he saw Mr Allan and told him that he would probably return to work in January (2014). He said he told Mr Allan that he thought he was going to be alright from what the doctors had told him, but “that was before I knew I was having radiotherapy”. He said he received a letter from the Austin (Olivia Newton-John Clinic) requesting that he see Dr Daryl Lim Joon, a radiation oncologist, which he said was “a surprise”.
News after the surgery that further treatment was required
Mr Clearihan said he went to see Dr Joon and was advised that while they had taken the prostate out in its entirety, it was extremely close to the margins. He said that Dr Joon recommended that Mr Clearihan undergo hormone therapy and radiation therapy. This is confirmed in a letter by Dr Joon to Mr Damien Bolton, Urologist, Austin Health – Repat, where he stated as follows:[36]
He has undergone a radical prostatectomy and this has shown him to have a Gleason 7 cancer but with seminal vesicle invasion i.e. a pT3b with lymphovascular invasion. He is recovering from this surgery and trial of void is planned for later in the week. We went through is pathology and I explained that he is at risk of having locally aggressive and metastatic disease…
[36] Exhibit “R6”.
Mr Clearihan accepted Dr Joon’s recommendation to undergo hormonal therapy and radiation treatment.
The Tribunal notes from a letter authored by Dr Manya on 4 December 2013 to Dr Moffitt that Dr Manya had reviewed Mr Clearihan on the same date and reported that Mr Clearihan had been “well”. Dr Manya reported, “He has good urinary flow, good control and has no pads. He has no erections. His most PSA is at 0.16”.[37] PSA is the acronym for “prostate specific antigen”.
[37] Ibid.
Radiation therapy commenced in January 2014
Mr Clearihan said the radiation treatment commenced sometime in January 2014 for a period of 39 consecutive days. He said that during that period, he also received the hormone injection. Mr Clearihan said he was unable to work while he was having the radiation treatment.
The Tribunal notes that in a letter dated 29 January 2014, Dr Joon reported to Dr Moffitt that Mr Clearihan had tolerated the radiation treatment “quite well” and that, “he has some slight increase in frequency that he has noticed since the commencement of his ADT[38] and he reports his bowel is slightly more irritable”.[39]
[38] Androgen Deprivation Therapy (i.e. hormonal therapy).
[39] Exhibit “R6”.
Hormonal therapy commenced in January 2014
Mr Clearihan said the hormone therapy involved three-monthly injections at first and then “bigger” six-monthly injections. He said the purpose of the hormone therapy was to starve the cancer of testosterone. Mr Clearihan said that the hormone therapy continued for three years.
Evidence as to Mr Clearihan’s symptomatology during 2014
Mr Clearihan described his physical symptoms in 2014 as follows: He said he was extremely tired a lot. He said he nearly passed out a couple of times and had to lie down regularly. In terms of his day-to-day life, Mr Clearihan said he could not do some things that he could normally do, such as play tennis. He said he could not lift anything that was “reasonably weighty”. He said it affected his concentration levels and his wife would tell him he was jumping from one thing to another. He said he felt nauseous every couple of days and had hot flushes “almost” nightly. He said the hot flushes did not seem to bother him during the days.
The Tribunal notes a letter dated 5 February 2014 authored by Dr Mark Ng Tang Fui, a consultant endocrinologist at Austin Health, to Dr Moffitt who reported, after seeing Mr Clearihan on the same date, as follows:
Keith was diagnosed with prostate cancer last year and has undergone surgery and radiotherapy and has commenced ADT in December 2013. He described some mild vasomotor symptoms but is not troubled by this…
Mr Clearihan said for exercise, he was only able to go walking. He said his wife coached him to slowly build up the distances he walked. He said that sometimes, he would have to stop.
In a letter by Dr Joon dated 17 March 2014 addressed to “To Whom It May Concern”, he described Mr Clearihan’s symptoms as follows:[40]
…He has developed some mild urinary symptoms from his radiation therapy and we are still assessing him from the viewpoint of hormonal therapy. It is likely that he will have significant fatigue from his treatments that can last for some months. His prognosis is guarded because of the very high risk nature of his disease. Because of this extensive medical treatment and associated possible side effects together with his multiple medical appointments his wife is presenting assisting as his carer.
[40] Refer Exhibit “R6”.
In a further letter by Dr Joon dated 18 March 2014 addressed to “To Whom It May Concern”, he stated that Mr Clearihan’s “short to medium outlook is good as he does not have any gross disease” and was “otherwise healthy with very little in terms of significant past medical history”. For this reason, Dr Joon certified Mr Clearihan as being able to travel from a medical perspective.[41]
[41] Refer Exhibit “R7” at page 118.
The Tribunal notes a further letter dated 2 April 2014 authored by Dr Joon to Mr Rogerson which stated that Mr Clearihan had completed his course of radiation. Dr Joon reported as follows:[42]
He has tolerated the treatment very well with some minor urinary and bowel irritation but this has now settled.
[42] Ibid.
A similar report was provided by Dr Joon to Dr Moffitt in a letter dated 1 May 2014 in which he stated as follows:[43]
He tolerated treatment very well and reports no significant side effects. We plan to review him again in approximately 3 months time with a repeat PSA prior.
[43] Ibid.
In about April or May 2014, Mr Clearihan said his wife persuaded him to start going to a “gym” that was around the corner from his house. He said a guy at the gym put a program together for him that “would not break him”. He said he was against it to begin with, but had to admit that it was good. He said the program involved using the exercise bike and the treadmill. He said the treadmill “killed him” and that once he had to sit down and place his head down as he “really felt faint”. Mr Clearihan said he attended once a week when the trainer was there and once on his own. He said he “could please himself and do a few light things”. Mr Clearihan said it was helpful going to the gym because he had put on some weight and he felt better “for doing something”.
Mr Clearihan’s PSA levels over time
The Tribunal notes the movement of Mr Clearihan’s PSA levels over time, according to the medical records and blood test results produced:[44]
[44] Refer Exhibits “R7” and “A8”.
(a)25 May 2013: 7.3
(b)26 August 2013: 7.2
Prostatectomy carried out on 17 October 2013
(c)29 November 2013: 0.17
(d)15 April 2014: <0.010
(e)11 February 2016 <0.03
(f)23 August 2016: <0.03
(g)24 November 2016: <0.03
(h)16 February 2017: <0.03
(i)27 July 2017: <0.03
(j)30 January 2018: <0.03
The standard range is 0.3-0.5 ug/L.
Advice provided by treating general practitioner to cease working
At the time of the cancer diagnosis, Mr Clearihan said he was being treated by Dr Moffitt. He said he was seeing him about once a month for a while until he ceased employment at CitiPower. He said that Dr Moffitt would say whether he could go back to work, and if not would provide a medical certificate. Mr Clearihan said that Dr Moffitt told him that he would not be going back to work and that he was not physically well. Mr Clearihan said he felt that he was not able to go back to work. He said he was having a lot of time off “which would be unfair”.
Mr Clearihan said that in 2014 he did not feel healthy enough to work because of “tiredness” and he was “depressed” because he knew that cancer was “something that virtually you could die from”. He said that no one would ever tell him he was cured and that “so far as I’m concerned, even now, I’ve still got it. It’s just not there or not showing at present but I know it’s there and that depresses me when I think about it, and I try not to, but I can’t help it sometimes”.
Further skin cancer detected and removed in May 2014
The Tribunal notes from a letter (a “Mohs operative report”) dated 12 May 2014, authored by Dr Upjohn, that Mr Clearihan attended again at The Avenue Hospital on the same date for further Mohs micrographic surgery to treat the skin cancer on his left posterior neck.[45]
[45] Refer Exhibit “R6”.
Growth in spine detected in June 2014 and surgically removed in September 2014
At the hearing, Mr Clearihan told the Tribunal that the doctor had detected a growth in his spine. The doctor told him it was not “representing as cancer” but the doctor would talk to other specialists to work out “what we’re going to do”.
The Tribunal notes a letter dated 26 June 2014 authored by Dr Joon referring Mr Clearihan to the Department of Neurosurgery for opinion and management in relation to a “6mm intradural extramedullary mass at the level of T5/6” which was identified from a restaging investigation. Dr Joon indicated in this letter his view that it was possibly a nerve sheath tumour or meningioma.
The operation was performed on Mr Clearihan’s spine on 9 September 2014 by a neurosurgeon, Mr Armin Drnda, at the Austin Hospital.
Mr Clearihan said he had this surgery because the growth “may continue to grow” and “cause problems down the track”. When asked what sort of problems it may cause, Mr Clearihan said “an inability to walk” and that it could put pressure on “your spinal nervous system”. He said he had asked the doctor whether he could end up in a wheelchair if he had the surgery. The doctor told him, “it’s remote, but yes”.
Mr Clearihan said he had not experienced any symptoms before they identified the growth in his spine from the MRI.
Communications with CitiPower about Mr Clearihan’s back issue
Mr Clearihan said that he called Mr Sam Mavraganis, his immediate supervisor at CitiPower, each month when he had a new medical certificate to submit. He said that sometimes “they” rang Mr Clearihan to see how he was.
The Tribunal notes an email that Mr Clearihan sent to Mr Mavraganis on 21 July 2014 in which he referred to the issue with his back as follows:[46]
Sam,
Tried to ring you a couple of times; the ‘thing’ on my spine is still unknown but will be removed by an operation in mid to late August.
I have to have various pre-admission tests in the interim.
Apparently; irrespective of whether it’s benign or not it can grow & put increased pressure on the spine & cause big problems later.
I have another MC for 2 months, my doctor’s going on leave.
…
[46] Refer Exhibit “A9”.
In addition, Mr Clearihan said Mr Allan would meet with him occasionally to see how he was or that Mr Clearihan would speak to Mr Allan on the telephone sometimes, when he had a new medical certificate to submit.
The Tribunal notes that Mr Allan refers to one such telephone call in an email he sent to David Turnour and Victoria Nichol, Human Resources Business Partner, at CitiPower on 12 September 2014, which stated as follows:[47]
Just had a call from Keith. He received a letter from the income protection outlining his “protection” will elapse in 1 year eg 23rd of this month.. Like a few people Keith thought it was 2 years. I think the print out we gave him calculated his leave for 2 years as well.? I told him that it was 1 year after 60. Keith had an op a few days ago to remove a secondary growth on his spine and depending on the result of the biopsy may or may not require more radiation therapy. He can’t see himself coming back for several weeks at this point best case scenario.
I guess he can take sick leave which I think was the intention of his call apart from the 1 year clarification…
Mr Clearihan’s subsequent notification to CitiPower in late-September 2014 that he would not be returning to work and discussions about a voluntary package
[47] Ibid.
Mr Clearihan said that he told Mr Allan during a conversation in about September 2014, that “all the medical advice was that he would not be coming back to work”. At this time, Mr Clearihan was 69 years of age. Mr Clearihan said he was disappointed that he was not going back to work because he enjoyed the work and the people he worked with. He said he felt he had made a contribution and the feedback he had received was that he had done a great job.
Mr Clearihan said that Mr Allan’s response to learning he would not be coming back to work was as follows:
He asked me if Sam had mentioned about CitiPower was doing some downsizing and I said, no, no-one’s mentioned that. I knew there was a new hierarchy, virtually new CEO or someone, and I said no and he said, well, you might want to consider if you’re not coming back applying for this voluntary departure package and he virtually - you know, he intimated that but he didn’t - I said, well, can you - rather than go by just verbal advice, because people can - not that I don’t trust Trevor but people can deny what they said. I said can you put it in writing to me and then we can consider it.
The Tribunal notes that Mr Allan sent an email to Mr Clearihan on 1 October 2014 informing him that he could apply for a voluntary redundancy and that otherwise, the “CO’s” would “merge with the inner PAL Connections team” at “Market St”.[48] Mr Clearihan responded to Mr Allan the same day stating that he would get some advice and that he was not sure what to do at that stage.[49]
[48] Refer Exhibit “A8”.
[49] Ibid.
The Tribunal notes that on 14 October 2014 Ms Nicol sent an email to Mr Turnour attaching a letter dated 10 October 2014 that Ms Nichol stated had been sent to Mr Clearihan.[50] This letter set out the options that were open to Mr Clearihan following a review of the Connections Services function. According to this letter, the options included submitting an application for one or more of the positions advertised in the new structure; applying for a voluntary redundancy or to take no action and be allocated to an area of the new structure as a Connections Officer following an assessment of Mr Clearihan’s preferences for team and location. Mr Clearihan was notified that this last option may involve a change to his title and reporting line.
[50] Refer Exhibit “A9”.
The Tribunal notes an email dated 16 October 2014 by Mr Allan to HR (copying in Ms Toohey), in which he stated:[51]
Keith is indicating that his doctor is saying he may never work again. As part of his financial planning and pensions, etc, with the armed forces, he is a lot better off if we “sack” him rather than him resigning or taking a VR.
So he is asking me “off the record how that could happen”. Can we word a letter to him that talks about his being impacted and his position is no longer available and say we’ll pay him x weeks in lieu of notice?
[51] Refer Exhibit “A9”.
The Tribunal notes an email from Mr Clearihan to Mr Allan on 20 October 2014 confirming that he authorised Mr Allan to arrange to obtain a voluntary redundancy payout figure for him.[52]
[52] Refer Exhibit “A8”.
When Mr Clearihan was asked about his attitude to the redundancy offer, he stated:[53]
I was a bit ambivalent about it because I thought, well, you know, with your - whatever’s in super and this, what are you going to do because Trevor told me I was virtually still required and - - -
What do you mean by still required? He still had a job for me there and I just - I don’t know, I was - I’ve always gone by what the medical people have told me because, as far as I’m concerned, they’re - that’s their job, they know what they’ve told me and they’ve been right so far.
[53] Refer Transcript 4 June 2018, P-18, lines 4-12.
The Tribunal also notes an email from Mr Allan to Ms Toohey on 21 October 2014 in which he stated:
Keith has been given the figures for his VR and had decided unfortunately to pursue his first option of us “letting him go” as it suits his long-term pension options?
On 29 October 2014, Mr Clearihan sent to Ms Toohey a medical report by Dr Moffitt stating that he was permanently disabled due to his accepted DVA disabilities from returning to work either now or in the future; and a further medical report by Dr Joon dated 7 October 2014 outlining the prostate cancer and stating that, due to Mr Clearihan’s age and the nature of his illness and disabilities, he was unable to return to work.
Mr Clearihan said he was ambivalent about the redundancy offer because he had a lot of things going through his head and was “down and depressed and that”. He said:
Does this mean I’m - you know, I won’t go back to work. What’s the - and, of course, the wife’s a financial genius in our family, not me, and what happens if I accept it? How does it - I don’t know and, in the end, all the advice was, get what you can.
Mr Clearihan said that this advice came from the people at CitiPower and his friends. When asked how the doctors’ advice was relevant to his decision, Mr Clearihan said:
Well, because they said I wouldn’t be going back to work, so do I do, do I just quit and see you later and that’s it or can I quit and they’ll say, yes, you can have two years for every year of service, great.
Mr Clearihan said he applied for the package. In an email to Mr Clearihan dated 10 November 2014, Ms Toohey confirmed that she had received his application on that day.[54]
[54] Refer Exhibit “A9”
Further skin cancer detected in October 2014 and subsequently removed
The Tribunal notes a letter dated 14 October 2014 from Dr Alvin Chong to Dr Moffitt which stated that he had seen Mr Clearihan that same day for a full skin examination. He had found two lesions which he described as “suspicious for BCC – one of on the right inner canthus, the other the right shoulder anteriorly”. A letter dated 22 October 2014 by Dr Upjohn referring to Mr Clearihan having “a biopsy proven BCC” and that he had been booked in for further Mohs surgery in the near future.[55]
[55] Refer Exhibit “R6”.
The Tribunal notes the following in Dr Velakoulis’s clinical note of his consultation with Mr Clearihan on 22 October 2014:
[A] --- Angst at recent thoracic spine/meningioma excision & BCC Dx[56]
…
[P] …
~ Not keen to ↑ Lexapro.
[56] BCC is shorthand for basal cell carcinoma (i.e. a common form of skin cancer).
Mr Clearihan’s recovery after the back surgery
Following the surgery to remove the meningioma, Mr Clearihan said he was not able to lift anything heavier than a milk carton for approximately three months. He said he told the gym he would not be “coming back for a fair while”. He said he was in hospital for one day only and was walking within a few days. When asked how long it took him to recover from this surgery, Mr Clearihan said that he was walking reasonably well by the end of three months so he started walking longer distances. He said he went to the “repat gym” in 2015, about seven, eight or nine months after the surgery.
Mr Clearihan said he did not have any ongoing symptoms arising from the back surgery. He said a subsequent MRI has shown that it is clear. He said the neurosurgeon wanted to review him once a year. He said the endocrinologist did not wish to see him anymore.
Mr Clearihan’s evidence as to why he ceased work and took a redundancy package
At the hearing, Mr Clearihan said he did not have any plans to retire. He was asked why he did not go back to work, to which he stated:
…Because they told me I wasn’t going back to work, the doctor said, you know, you - you’re not capable of - and I knew probably deep down I wasn’t capable but - and, you know, with all the cancers and that my mind was in a turmoil, I didn’t know what was best, which way to go as far as take the package or not take the package so I took the package.
[Counsel: And if you had not had the cancer in July 2015 is it possible you would’ve been working?] Well, if I hadn’t had the prostate cancer I would’ve probably worked right through until whenever. I don’t know. But 2015, yes, I would’ve - I would think I’d still be working then because that was only a couple of years after it so - I mean, everything was out of the blue to me, it was all new.
At the hearing, Mr Clearihan said he was currently going to the gym. He said he was not receiving any treatment for cancer at that time. He said that Dr Joon has ceased the hormone therapy “at the end of 2016 or near – somewhere in 2016, I think it was September”. He said he was due to see him six months later but “did not want to get a nasty surprise”, so he saw his general practitioner after three months to ask for a blood test. The doctor told him it was good, “0.03 or something”. Subsequently, he had another blood test and it was down. He said he saw Dr Joon earlier in [2018] and that he did not have to see him again for another 12 months.
During cross-examination, it was put to Mr Clearihan that his back condition and the surgery that had followed in September 2014 had been a factor in his “calculations” when he spoke to Mr Allan in that same month to advise him that his doctor had told Mr Clearihan that he would not be returning to work. Mr Clearihan said he did not agree with this proposition and that, “The back operation was neither here nor there, it was just a back operation. It had no bearing on me retiring”[57] and, “It didn’t have any effect on me before, I didn’t even know it was there and afterwards I just recovered from the op and I was okay and I’ve had no symptoms there since…”[58]
[57] Refer Transcript 4 June 2018, P-24, lines 19-21.
[58] Refer Transcript 4 June 2018, P-25, lines 29-31.
Evidence as to the degree of Mr Clearihan’s physical capacity
The Commission contended this should be taken to be 18.75 hours in this application (i.e. 50% of 37.5 hours) as the evidence was that Mr Clearihan’s standard hours of work at CitiPower were 37.5 hours per week. However, the test under s 23(2) in not based on 50% of the full-time hours last worked by the veteran. Instead, the Tribunal must make a finding about what it considers to be the time ordinarily worked by persons engaged in work of that kind on a full-time basis. The Tribunal finds that persons engaged in clerical work typically work a 40-hour week and for this reason the full-time hours for the purpose of applying s 23(2) in Mr Clearihan’s case is 40 hours. However, nothing turns on this issue as the Tribunal has found that during Period No.2 Mr Clearihan was capable of working 20 hours per week.
On this basis, the Tribunal concludes that Mr Clearihan did not meet the requirement under s 23(1)(b) as the circumstance specified in s 23(2)(a) applied to him during Period No.2. In respect of Period No.1, the Tribunal has already found that Mr Clearihan was totally incapacitated and for this reason, the requirement under s 23(1)(b) was not met with respect to this earlier period.
S 23(3A)(d) requirement
The Tribunal has also considered whether the requirement under s 23(3A)(d) of the Act is met (the “alone test” requirement).
For the reasons outlined above when considering the “alone test” in the context of s 24 and based on the matters referred to in the following two paragraphs, the Tribunal is not satisfied that Mr Clearihan met the requirement under s 23(3A)(d) of the Act at any time during the Assessment Period.
The Tribunal considers that one of the factors that contributed to preventing Mr Clearihan from undertaking to his last paid (clerical) work was, and still is, that by the commencement of Period No.1 he had settled into his retirement lifestyle and did not wish to relinquish it. This is not a factor arising from incapacity from his war-caused diseases and the Tribunal considers that it contributed to preventing Mr Clearihan from undertaking his last paid (clerical) work during Period No.1 and Period No.2. In respect of Period No.2, the Tribunal accepts Dr Schultz’s evidence as detailed in paragraph [202] notably, that Mr Clearihan had stated (during the consultation with Dr Schutz in April 2017), that he sees himself as retired and he had not bothered to look for a job.
The Tribunal also considers that as time progressed over the course of Period No.2, Mr Clearihan’s advanced age, whilst not previously a factor during Period No.1, had emerged as a further non-war-caused preventative factor which contributed to preventing him from undertaking his last paid (clerical) work during Period No.2. Mr Clearihan was aged 71 when Period No.2 commenced and is presently 74 years old. Mr Clearihan would have had an opportunity to resume his last paid (clerical) work had he kept open his permanent position with his extremely supportive employer, CitiPower, but once this was closed off as an option, the Tribunal is satisfied that Mr Clearihan advanced age would have contributed to preventing him from obtaining work in the open market being aged between 71 and 74 as he was during Period No.2. This is not a factor arising from incapacity from his war-caused diseases.
S 23(3A)(e) requirement
The Tribunal has already found that in respect of Period No.1, Mr Clearihan ceased to engage in remunerative work for reasons other than incapacity from his war-caused diseases. For the same reasons as set out in paragraphs [298] to [313], the Tribunal concludes that the specified circumstance described in s 23(3B)(a) applied to Mr Clearihan during Period No.1. By extension, the Tribunal is also satisfied that this was the case during Period No.2 based on the Tribunal’s finding that one of the reasons Mr Clearihan did not obtain new work after he finished up at CitiPower was because he did not wish to relinquish his retirement lifestyle which he was enjoying, and further, his increasing advanced age (progressing into Period No.2) had become another reason why he did not obtain new work. Both of these reasons do not arise from Mr Clearihan’s incapacity from his war-caused diseases.
Accordingly, by operation of s 23(3B) Mr Clearihan is taken not to have suffered a loss of salary or wages by reason of the incapacity from his war-caused diseases during either Period No.1 or Period No.2. Consequently, the Tribunal concludes that Mr Clearihan did not meet, at any time during the Assessment Period, the requirement under s 23(3A)(e) to be paid an intermediate rate of pension.
CONCLUSION
The Tribunal concludes that Mr Clearihan was not eligible to receive the special rate of pension (including for a temporary period) or the intermediate rate of pension at any time during the Assessment Period. The Tribunal affirms the decision under review.
330.
331. I certify that the preceding three hundred and twenty-nine (329) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.
...........[sgd]............................................................
Associate
Dated: 18 June 2019
Dates of hearing: 5 & 6 June 2018 and 7 September 2018
Advocate for Applicant: Mr M Kenneally of counsel
Solicitors for Applicant: Williams Winter
Advocate for Respondent: Mr Kevin Rudge
APPENDIX A – Section 19 of the Act
Determination of claims and applications
(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and
(b) subject to this section, determine the claim as provided by subsection (3); and
(c) subject to this section, determine an application under subsection 15(1) under subsection (5D); and
(d) subject to this section, determine an application under subsection 15(2) as provided by subsection (5).
(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:
(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);
(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and
(c) any evidence, documents or other material furnished to the Commission under section 32.
(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or
(ii) the death of a veteran that was war-caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).
(4) The Commission must determine an application under subsection 15(2) as provided by subsection (5).
(4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).
(5) The Commission must determine an application under subsection 15(2) as follows:
(a) first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran;
(b) then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D).
(5A) If:
(a) paragraph (3)(b) applies in respect of a claim; or
(b) subsection (4A) applies in respect of an application under subsection 15(1); or
(c) paragraph (5)(b) applies in respect of an application under subsection 15(2);
the Commission must assess the matters set out in subsection (5C).
(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.
(5C) The matters that the Commission must assess are:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.
(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.
(5E) Pension is payable from the date of effect of the determination made under:
(i)in the case of a claim--subsection (3); or
(ii)in the case of an application made under subsection 15(2)--paragraph (5)(a); or
(iii)in the case of an application made under subsection 15(1)--subsection (5D).
(5F) A determination under:
(a) subsection (3), in respect of a claim; or
(b) subsection (5), in respect of an application under subsection 15(2); or
(c) subsection (5D), in respect of an application under subsection 15(1);
takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination.
(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
(7) Where:
(a) the Commission, upon considering a claim for a pension in respect of the incapacity of a veteran from injury or disease determines, or is satisfied, that the veteran suffered the injury or contracted the disease as claimed and that the injury is a war-caused injury or the disease is a war-caused disease, as the case may be; and
(b) the Commission is also satisfied a determination under this Act is in force determining that the veteran has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that:
(i) that injury is a war-caused injury, or is, in accordance with subsection 70(3), a defence-caused injury for the purposes of subsection 70(1); or
(ii) that disease is a war-caused disease, or is, in accordance with subsection 70(3), a defence-caused disease for the purposes of subsection 70(1);
as the case may be, whether or not a pension under Part II or Part IV, as the case requires, has been granted in respect of that injury or disease;
the Commission shall not, in a case where the claimant is in receipt of a pension under Part II or Part IV in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such defence-caused injury as war-caused injury and any such defence-caused disease as war-caused disease:
(c)if the claimant is not in receipt of a pension under Part II or Part IV--determine whether the claimant is entitled to be granted a pension under Part II and, if it determines that the claimant is entitled to be granted such a pension, assess the rate of the pension to be granted to the claimant in accordance with the preceding provisions of this section; or
(d) if the claimant is in receipt of a pension under Part II or Part IV--re-assess the rate of that pension in accordance with the preceding provisions of this section.
(8) Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence.
(9)In this section:
"application " means an application made in accordance with section 15.
"application day" , in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2), 20(2B) or 21(2) applies to the person--the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.
"assessment period", in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
"claim " means a claim made in accordance with section 14.
"relevant documentary medical evidence", in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:
(a) in support of the claim or application; or
(b)if a part only of the claim or application was granted--in support of that part of the claim or application.
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