Cousins and Repatriation Commission
[2008] AATA 67
•24 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600396
VETERANS' APPEALS DIVISION ) Re DOUGLAS JOHN COUSINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date24 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
VETERANS’ –Veterans’ pension – Special rate of pension – Alone test – Remunerative work – Ameliorating provisions
Giesen v Repatriation Commission [2005] FCA 846
Repatriation Commission v Hendy (2002) 76 ALD 47
Veterans’ Entitlements Act 1986 s15, s19, s24
REASONS FOR DECISION
24 January 2008 Mr Egon Fice, Member 1. Mr Douglas John Cousins is a veteran with a number of accepted medical conditions. On 1 December 2005 Mr Cousins lodged a claim for an increased rate of pension. That claim was refused by the Repatriation Commission (Commission) and his application for review of the decision to the Veterans’ Review Board (VRB) was also unsuccessful. Mr Cousins seeks a review of the VRB decision made on 13 April 2006 and he claims that he is entitled to a disability pension at the special rate in accordance with s 24 of the Veterans’ Entitlements Act 1986 (the VE Act).
2. The only issue before me is whether Mr Cousins meets the requirements for an increase in his rate of pension to the special rate.
RELEVANT BACKGROUND
3. Mr Cousins was born on 17 July 1947 and therefore on the day that he applied for the special rate of pension he was 58 years old.
4. The Commission has accepted liability for the following medical conditions from which Mr Cousins suffers, for pension purposes:
(a) Phobic reaction
(b) Dyspepsia
(c) Bilateral sensorineural hearing loss
(d) Post Traumatic Stress Disorder
(e) Tinea
(f) Hypertension
(g) Alcohol dependence or alcohol abuse(h) Malignant neoplasm of the bladder
5. For the purposes of the Veterans’ Disability Pension, he was assessed at 100 percent of the general rate from 1 September 2005.
6. Mr Cousins served in the Royal Australian Navy (Navy) between 16 January 1965 and 15 January 1977. He had periods of operational service.
7. After being discharged from the Navy Mr Cousins worked in a number of different jobs, including:
(a)as a trade assistant assisting a tradesman at Darwin Powerhouse between 1977 and 1978;
(b)as a farm hand at an agricultural research station between 1979 and 1981;
(c)as a general farm hand at Bodallin, Western Australia between 1981 and 1984;
(d)as a general farm hand at Calingiri, Western Australia between 1984 and 1987;
(e)as a truck driver carting iron ore and doing trades assistant work (which included working in a workshop and with the blast crew dealing with explosives) at Shay Gap, Western Australia between 1987 and 1990;
(f)as a tree cutter, clearing trees from powerlines with AH & BA Pilcher in Bendigo between 1991 and 1995; and
(g)as a tree cutter, conducting line-clearing operations with a private company, Asplundh Tree Expert (Australia) Pty Ltd (Asplundh) between September 1995 and August 1997.
8. Mr Cousins suffered a serious back injury while working for Asplundh on 22 May 1997. He did return to work following the back injury but only on light duties, conducting repairs to chainsaws and making deliveries. After some three weeks, he returned to light duties with the line clearing gang where he was able to act as observer for the worker using the cherry picker working around powerlines, and assisting with traffic management. He was retrenched from Asplundh on 23 August 1997 and has not worked since.
THE LEGISLATIVE SCHEME
9. An application for an increase in pension may be made by a veteran who is receiving a pension under Part II of the VE Act (s 15(1)). The ground for such an application must be that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed.
10. Where a claim or application is submitted to the Commission, the Commission must assess:
(a)the rate or rates which the pension would have been payable from time to time during the assessment period; and
(b)subject to section 19(6) (the VE Act), the rate of which the pension is payable.
11. Section 19(6) of the VE Act simply provides that where a pension is payable at sometime during the assessment period at the rate provided by s 23 or s 24, then, subject to s 24A (not applicable in this case), the rate at which the pension is payable must not be lower than the rate provided by whichever of the sections applied, or applied most recently, during the assessment period.
12. The assessment period is defined in s 19(9) of the VE Act and, in relation to a claim or application relating to a pension, it means the period starting on the application day and ending when the claim or application is determined. In this case, we are concerned with an application. Application day is also defined in s 19(9) and it means the day on which the claim or application was received at an office of the Department (Veterans’ Affairs) in Australia or, if s 20(2) or s21(2) applies to the person, the day on which the claim or application referred to in those sections was received. Section 21(2) relevantly provides that if a person makes an application in writing under s 15(1) or s 15(2), but not in accordance with an approved form, and the person subsequently makes an application in accordance with an approved form within three months after being notified that it is necessary to do so, if an increased pension is granted, the Commission may specify the date when the application takes effect to be the date when the application was first made in writing. Therefore, the earliest date from which the special rate pension can be paid to Mr Cousins is 1 September 2005. That of course is provided that Mr Cousins was eligible to be granted the increased pension on that date.
13. The most significant section of the VE Act for the purposes of this application is s 24. There is no issue about the requirements set out in sections 24(1)(aa), (aab) and (a)(i). That is, Mr Cousins has made an application under s 15 of the VE Act for an increase in the rate of pension that he is receiving; he had not turned 65 when the application was made; and his degree of incapacity from war-caused injury or war‑caused disease has been determined to be at least 70 percent by a determination that is in force. The problems arise with the following subsections :
24 Special rate of pension
(1)This section applies to a veteran if:
…
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and …
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) 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
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
REMUNERATIVE WORK
14. As the Full Court of the Federal Court said in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]:
… The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. …
15. In this case, Mr Cousins’ working history since leaving the Navy can be broadly described as a semi-skilled labourer. There seems to be no dispute about that.
THE CAUSE OF INCAPACITY
16. Sections 24(1)(b) and s 24(1)(c) of the VE Act must be satisfied in that the veteran’s incapacity from a war-caused injury or war-caused disease must, of itself alone, either render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week or continuing to undertake remunerative work that the veteran was undertaking; and as a consequence, the veteran must suffer a loss of salary or wages or of earnings that the veteran would not have suffered if he or she were free of that incapacity.
17. Although I appreciate that s 24(1)(b) of the VE Act goes to the nature and level of incapacity by which the ability to undertake remunerative work is to be assessed; and that s 24(1)(c) is concerned with the causation of the veteran’s inability to continue with remunerative work that he or she was undertaking; it is what is frequently referred to as the alone test which is at the heart of this application. In other words, incapacity from a war-caused injury or war-caused disease must, by itself alone, limit a veteran’s remunerative work capacity to periods aggregating less than eight hours per week and prevent the veteran from continuing to undertake the remunerative work that he or she was undertaking. If there are other reasons which limit or prevent the veteran from continuing to engage in remunerative work, then the veteran does not satisfy the requirements of s 24(1)(b) and (c).
CAUSE OF WORK INCAPACITY
18. Mr Cousins claimed that the reason for him not being able to continue to pursue the remunerative work he was undertaking prior to being retrenched by Asplundh was that he suffered from post traumatic stress disorder (PTSD). He disagreed with the contention that other injuries which he received in the course of his working life, namely a laceration to his left finger, an injury to the right shoulder and neck and an injury to his back in 1997, prevented him from undertaking remunerative work. There was no dispute that Mr Cousins has not worked since he was retrenched by Asplundh in 1997.
19. One problem for Mr Cousins is that shortly after he sustained his back injury, he made an application for compensation under the Accident Compensation Act 1985 (AC Act). His claim was denied and he brought an application in the County Court against the insurer, MMI Workers’ Compensation (Victoria) Limited, and Asplundh. In an affidavit sworn on 3 December 1999, Mr Cousins said that he relied on his shoulder injury and back injury in substantiating his claim for a serious injury certificate under s 135A of the AC Act. In that affidavit he also said that he relied on the fact that he suffered severe long term mental or severe long term behavioural disturbance or disorder relating to his psychiatric condition (by that I understand his PTSD). On 21 March 1996 Mr Cousins suffered a rotator cuff injury to his right shoulder and on 22 May 1997, he suffered a lumbar disc injury to L4-5 and L5-S1 including central to left sided disc bulge on L5-S1 and broad central disc bulge at L4-5. He was also diagnosed as having S1 nerve root lesion.
20. Because of his injuries, Mr Cousins was of the view that he could not continue to do the physical work he had been doing and he said:
…
The injury has also placed very hard restrictions on any type of work that I can do as my whole working life has been of a physical nature and this makes getting any gainful employment in the future next to impossible. …
21. Mr Cousins also deposed to the fact that not being able to work in itself had an adverse effect on his mental state and made him depressed. He said he felt useless because he cannot continue working and that he was taking an anti-depressant. He also said that he had not been depressed prior to his back injury but that he had become depressed since. He said that he had been diagnosed with PTSD but that he was coping with that prior to his back injury. Mr Cousins said that his back injury problem had changed his life to the extent that he felt that he would never come good and that life did not have a lot of meaning for him because he had always worked. Mr Cousins also said:
… Each of my shoulder injury and back injury has affected any future employment prospects as I can no longer do any strenuous or physically demanding jobs that I have done for most of my working life. At 52 years of age I believe that I am too old to be retrained and accordingly believe that I have limited prospects of ever returning to paid employment. …
22. Dr John Garland, a psychiatrist, examined Mr Cousins and provided a report dated 9 March 1999. In his report, Dr Garland said that he did not consider Mr Cousins to be totally incapacitated because of his age (51 years) and that he was capable of some form of suitable employment, possibly after a period of appropriate training.
23. Mr Ivan Honey, a psychologist who examined Mr Cousins on 2 June 1997, said that Mr Cousins was suffering from a significant adjustment disorder as he sought to deal psychologically and physically with being unemployed. He also said that it would seem that his back injury precludes him from obtaining any employment for which he is currently qualified.
24. It is of course some 10 years since Mr Cousins suffered his back injury and ceased all remunerative work. Although there was no evidence before me that Mr Cousins had undergone any further treatment for his back since about 1999, his evidence was that his back no longer precluded him from undertaking moderate physical activities. However, in a brief report prepared by Dr Anthony Jackson on 9 March 2005, Dr Jackson indicated that although Mr Cousins had been well, he did not undergo recent investigations because of a bad back. The investigations referred to by Dr Jackson were because of chest pains.
25. Mr Cousins was examined by Mr George Foenander, clinical psychologist, on 4 October 2006; 16 November 2006; and 5 February 2007. Mr Foenander provided a detailed report dated 12 February 2007. In the history recounted to Mr Foenander, Mr Cousins said he had suffered the injuries when working as a tree cutter and that his back injury was the more serious of those. Mr Foenander noted in his report that Mr Cousins received Workcover benefits for his injuries and that although he had subsequent treatment, he reported no long term benefit from that treatment for his Workcover injuries. He also noted that Mr Cousins was declared permanently unfit for work under the Victorian Workcover System Guidelines.
26. The purpose of Mr Foenander’s examination was, of course, to assess Mr Cousins’ mental state and the impact that had on his future employment. Mr Foenander’s opinion was that Mr Cousins was suffering from chronic PTSD and a secondary alcohol abuse disorder. He also opined that Mr Cousins was suffering chronic pain syndrome; although, I note that Mr Foenander is not a medical practitioner. In his opinion, Mr Cousins was suffering from a moderate level of functional impairment. Mr Foenander concluded that it could be expected that the PTSD and alcohol abuse suffered by Mr Cousins contributed or impacted on his work injuries. Those injuries, according to Mr Foenander, aggravated his psychiatric symptoms of PTSD and alcohol abuse. Mr Foenander said:
…
It is therefore concluded that Mr. Cousins’s [sic] accepted PTSD and Alcohol Dependence seemed contributing causes to his work related injury, the latter in turn aggravating his PTSD and Alcohol Dependence subsequently, preventing him from future gainful employment. …
27. Dr Robyn Horsley, an occupational physician, examined Mr Cousins on 4 October 2006 and provided a report the following day. Dr Horsley took a detailed history, particularly of Mr Cousins’ diagnosed conditions of PTSD and alcohol dependence or alcohol abuse.
28. On examining Mr Cousins, Dr Horsley noted and measured a significant reduction in muscle bulk on Mr Cousins’ left thigh and left calf. She said that this represents a significant reduction in muscle bulk on the left side consistent with discal pathology. Dr Horsley also referred to a workability form completed on 4 December 2005 by Mr Cousins’ local doctor, Dr Peterson. She noted that under the medical conditions said to have reduced Mr Cousins’ ability to work were:
a.Ischaemic Heart Disease;
b.Diabetes;
c.Severe depression;
d.Emphysema.
29. Dr Horsley reported that on her examination there were few signs related to Mr Cousins’ right shoulder but noted that the previous rotator cuff disability suggests that there is underlying rotator cuff degenerative change. She also reported that the injury Mr Cousins suffered to his lumbar spine was significant and had resulted in the loss of muscle bulk in the left leg secondary to neurological damage. In her opinion, Mr Cousins’ lumbar condition impacts on his capacity for work. She also suggested that some restrictions would need to be applied to Mr Cousins’ physical activities because of his right shoulder condition. In her opinion, because of his right shoulder and lumbar condition, Mr Cousins was permanently unfit for his previous job as a tree lopper. She was also of the opinion that Mr Cousins was permanently unfit for his previous jobs as a miner and a farmer. Further, because of Mr Cousins’ relatively low level of formal education, he was suited to manual work which was now beyond his physical capacity. He had no computer skills and at 59 years of age, he had reached the end of his working life from a physical perspective. She was of the view that Mr Cousins’ incapacity to undertake remunerative work was permanent.
30. Under cross-examination, it was put to Dr Horsley that Mr Cousins in fact returned to work following his back injury and that he only ceased working as a consequence of being made redundant. Although Dr Horsley accepted that, she said it did not explain why Mr Cousins remained out of the workforce for the following 10 years. She remained of the view that Mr Cousins’ back condition was a significant factor preventing him from working.
31. In my view Mr Cousins’ accepted disabilities are not the only reasons that he was unable to continue to undertake the remunerative work that he was previously undertaking from the time he left the Navy until 1997. Even though Mr Cousins did return to work after his back injury, the evidence is that he was put on light duties for the reason that his back injury had not resolved. The evidence given by Mr Cousins in his affidavit of 3 December 1999 clearly indicates the difficulties he experienced working because of his back injury. There is no evidence to indicate that the back injury, or the shoulder injury for that matter, have ever completely resolved. In fact, according to Dr Horsley, the objective evidence is that those two conditions will continue to limit Mr Cousins’ physical capacity for work.
32. Although I have no doubt that Mr Cousins also experiences employment problems as a consequence of his accepted PTSD and alcohol abuse, those conditions alone do not prevent him from continuing to undertake the remunerative work that he previously undertook. In fact, even on his own evidence, he was better able to cope with those problems when he was working as apposed to the situation since 1997 when he ceased working. Furthermore, his work history since leaving the Navy indicates that although it caused him problems from time to time, his PTSD and excessive drinking did not prevent him from continuing to engage in remunerative work. Unfortunately for Mr Cousins, the alone test which has to be met under s 24 of the VE Act is an extremely difficult one to satisfy, particularly where a Veteran has medical problems other than his accepted medical conditions. In his case, there is clear evidence of other medical conditions, including his lower back and right shoulder which prevent him from continuing to engage in remunerative work. The fact that his formal education is of a relatively low standard and that he is not computer literate simply exacerbates his problem. The fact that he has now been out of the workforce for some 10 years would also have some adverse effect on his chances of ever being re-employed.
THE AMELIORATING PROVISIONS
33. Mr De Marchi, solicitor, who appeared on behalf of Mr Cousins, submitted that the ameliorating provisions in s 24(2) should be applied to Mr Cousins. Mr De Marchi submitted that Mr Cousins has genuinely been seeking to engage in remunerative work and that his incapacity is the substantial cause of his inability to obtain that work. However, in my opinion, the evidence does not disclose that Mr Cousins has been genuinely seeking to engage in remunerative work.
34. Mr De Marchi submitted that Mr Cousins had sought work as a security guard. However, in his affidavit of 3 December 1999, Mr Cousins said that he started a security guard course in 1998 but had to stop on doctor’s orders because of the physical aspects of the course being burdensome for him. Quite clearly, Mr Cousins never sought work as a security guard. He simply did not complete the course. As that was the only evidence tendered in support of the application under s 24(2) of the VE Act, it cannot be said that Mr Cousins has actively sought to engage in remunerative work since 1997.
35. Although it is not necessary for me to further assess the application of the ameliorating provisions, it is my view that s 24(2) of the VE Act does not apply to a veteran who has undertaken remunerative work after leaving the service. The reason is that s 24(2)(b) cannot, on a proper reading of that subsection, apply to a veteran who has at some time after completing military service engaged in remunerative work. Section 24(2)(b) expressly states that to be the case. Furthermore, that subsection states that where a veteran has not been engaged in remunerative work, he or she is able to take advantage of the fact that he or she has been continuing to seek remunerative work because, in those circumstances, he or she is to be treated as having been prevented by reason of his or her incapacity from continuing to undertake remunerative work that the veteran was undertaking. In other words, it is a deeming provision designed to assist veterans who cannot meet the test under s 24(1)(c) because they have not been able to engage in remunerative work after leaving the service. This was the view adopted by Gray J in Giesen v Repatriation Commission [2005] FCA 846. Although Gray J clearly expressed his view about the way s 24(2) of the VE Act was to be applied, he declined to apply that view because of the unanimity of the parties before him that it was not the correct view. It was only because the Respondent in that case conceded that it was open to the Applicant to take the benefit of the lenient test in s 24(2) that he did not apply the VE Act according to his own view. However, given that the matter before Gray J was on appeal from the Tribunal and neither party pressed that point, it is understandable why his Honour declined to apply his interpretation of s24(2). Nevertheless, in my opinion, for the reasons stated by Gray J, s 24(2) cannot apply to a veteran who has been engaged in remunerative work since leaving military service.
CONCLUSION
36. Mr Cousins suffers from a number of medical problems, some of which are service related and some which are not. An Applicant for a special rate of pension must, in order to succeed, satisfy the alone test set out in s 24 of the VE Act. That test can only be satisfied where a veteran’s accepted disabilities alone render the veteran incapable of undertaking the remunerative work that the veteran was undertaking prior to ceasing work. The most significant of Mr Cousins’ injuries, for which liability has not been accepted, include those he suffered to his right shoulder and lower back. Because Mr Cousins is limited to undertaking physical work due to his limited education, those non‑accepted medical conditions do play a part in preventing him from obtaining remunerative work. He therefore cannot meet the alone test.
37. Further, there was no evidence before me that, even if s 24(2)(b) could be applied to him, Mr Cousins was in fact genuinely seeking to engage in remunerative work. Other than commencing a course as a security guard, there was no evidence that Mr Cousins had taken any steps to engage in remunerative work.
38. Therefore, the decision of the VRB made on 13 April 2006 denying Mr Cousins the Veterans’ Disability Pension at the special rate must be affirmed.
I certify that the thirty-eight (38) preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, MemberSigned: Dianne Eva
ClerkDate/s of Hearing 5 September 2007 and 7 November 2007
Date of Decision 24 January 2008
Solicitor for the Applicant Mr D. De Marchi, De Marchi & Associates
Advocate for the Respondent Mr K. Herman, Department of Veterans’ Affairs
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