Craig and Repatriation Commission
[2008] AATA 70
•25 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 70
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600248
VETERANS' APPEALS DIVISION ) Re ADRIAN GORDON HUDDLESTONE CRAIG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date25 January 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – assessment of appropriate rate of Disability Pension – special rate – no economic loss – decision affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Re Forrester and Repatriation Commission (AAT 12501 22 December 1997)
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50REASONS FOR DECISION
25 January 2008 Mr J G Short (Member) introduction
1. Mr Craig is a Vietnam veteran. He has accepted disabilities of bilateral sensorineural hearing loss, post-traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse, alcoholic liver disease and gun shot wound to the left ankle.
2. On 15 December 2005, Mr Craig lodged an application for an increase in pension. By decision dated 23 March 2006, the Repatriation Commission (the Commission) decided to increase Mr Craig’s rate of pension to 90 percent of the general rate with effect from 15 December 2005. This decision was affirmed by the Veterans’ Review Board (the VRB) on 11 July 2006. Mr Craig now appeals the Commission’s decision.
3. Mr Craig suggested that he is entitled to the special rate as determined under s 24 of the Veterans’ Entitlements Act 1986 (the VE Act). The Commission acknowledges that Mr Craig satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 percent of the general rate), and the second criterion (an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
issue for determination
4. The issue before the Tribunal is whether Mr Craig satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from his war-cased injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
5. I have reached the conclusion that Mr Craig has not satisfied the requirements of s 24(1)(c) of the VE Act. I have found that, for the purposes of the Act, he ceased to engage in remunerative work as a soldier for reasons other than incapacity from war-caused conditions. Consequently, he is not entitled to pension at the special rate.
legislation
6. Sections 24(1)(c), 24(2)(a) and 24(2)(b) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(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;
(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
.
If s 24(1) of the VE Act applies to Mr Craig, he will be entitled under s 24(4) to a pension at the special rate therein provided.
background and evidence
7. Mr Craig joined the Australian Army (the Army) immediately after leaving school and retired in 1992 with the rank of major. It is common ground that he retired as he had attained what was at that time the compulsory retirement age.
8. After leaving the Army, Mr Craig undertook a course of training with the aim of finding employment with the State Emergency Service (SES). He was unsuccessful in finding such employment.
9. Mr Craig’s only successful civilian employment was a few weeks of fruit picking during the years 1993 to 1995 inclusive. Mr Craig also referred to undertaking work as a life or nude model in February 2007.
10. Mr Craig’s submission in relation to his entitlement to receive pension at the special rate changed to some extent during the period over which his application was heard at this Tribunal. Initially the submission was to the effect that Mr Craig had been seeking to undertake employment and that his accepted disabilities were the substantial course of him no longer seeking to engage in a search for work. Mr Craig explained that following a pre-trial conference, he formed the view that it was necessary for him to apply for work. He said that in addition to this understanding motivating his actions, he also needed money. Mr Craig said that he had been a nudist all of his life, appreciated that he had little or no civilian work experience and consequently hit on the idea of seeking employment as a life model. To this end, Mr Craig successfully applied to a number of organisations for work as a life or nude model.
11. Mr Craig said that he started to pick up work, eventually signing a contract with the Adelaide Centre for the Arts to perform 100 hours of modelling work over a period, but at a maximum of 5½ hours a week. This work was usually performed on a Wednesday. Mr Craig explained that he received approximately $20 an hour for his services. He provided a list of nine engagements performed between 22 February 2007 and 10 May 2007, commonly undertaken for approximately five hours a day for four separate employers.
12. Mr Craig said that he did not appreciate at the time of commencing this activity that his accepted disabilities, particularly PTSD and a gun shot wound to his left ankle, would prevent him from successfully undertaking this work.
13. Mr Craig found that while performing standing poses, he was able to keep his mind occupied by concentrating on his body, but that left ankle pain (flowing from his gun shot wound) would mean he could not stand for lengthy periods of time. He said that sitting poses were easier on his body, however while sitting, memories of Vietnam flooded back aggravating his PTSD symptoms. On or about 14 May 2007 he sent letters of resignation to the various institutions which had offered him work. This was the position at the penultimate day of hearing. After an adjournment and on the final day of hearing, Mr Craig said that some institutions had contacted him and that he had performed some work, but no more than three hours a week. He said that in all, he had undertaken seven sessions of work since he issued his notices of resignation in May 2007 until performing two hours of work on 19 October 2007. Mr Craig said that he could not now recall but may in fact have approached one or more of the institutions for work. However, most of these seven sessions were undertaken as a result of approaches from the institutions. Mr Craig said that he tried to resume some life modelling work on “a very part-time basis”. He said that he again found that he could not successfully perform this work and that he has now determined not to accept any further assignments.
consideration
14. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?”
15. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
16. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; RepatriationCommission v Braund (1991) 23 ALD 591.
17. As mentioned, Mr Craig initially suggested that he would qualify for pension with the aid of the ameliorating provisions applied to veterans who are under 65 years of age and who have been continually seeking to undertake remunerative work, but have been unable to continue to do so as the result, substantially, of accepted disabilities. Ultimately it was submitted by Mr Craig that his self-employment as a life model, work performed for a number of different institutions from 22 February 2007 until notices of resignation were provided on 14 May 2007, constituted the performance of remunerative work and that his inability to perform that work amounted to a cessation of employment due solely to accepted disabilities, in particular a combination of Mr Craig’s gun shot wound to his left ankle and his PSTD. Reliance upon the ameliorating provisions of the VE Act was retained as an alternative argument.
18. Mr Craig called evidence from psychiatrist, Dr Marty Ewer. Dr Ewer’s most recent report is dated 20 September 2007. In this report, Dr Ewer referred to his previous reports and to his interview with Mr Craig conducted on 18 September 2007. Dr Ewer provided the opinion that Mr Craig continues to suffer from chronic PTSD. He said that Mr Craig’s alcohol dependence was in remission. Dr Ewer said that on the history he obtained from Mr Craig, it was his opinion based on a reasonable degree of medical probability, that Mr Craig’s PTSD was materially aggravated by his working as a life model. He went on to list symptoms of PTSD which resulted in an incapacity for work. He then concluded by saying:
“When considered together the above render Mr Craig unfit to work eight or more hours per week. In my opinion, his war-caused psychiatric disorder (Chronic Post-Traumatic Stress Disorder) is the only psychiatric disorder preventing him from continuing to undertake remunerative work as a life model. …”
19. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
20. In this case it was submitted that the type of work which Mr Craig had undertaken was as a soldier, then for a few weeks as a fruit picker and finally as a life model.
21. Mr Crowe submitted that the period of work undertaken by Mr Craig as a life model could not satisfy the definition of remunerative work for the purposes of s 24 of the VE Act. Mr Crowe suggested that Mr Craig had not successfully undertaken this work. According to Dr Ewer, the ability to undertake work involves concepts of risk, that is risk in performing work to the worker and to other people around him, a capacity to physically and mentally perform the task and finally, tolerance, that is the ability to perform the task more than momentarily. Dr Ewer said that if he had been asked by Mr Craig if life model work was suitable for him, he would have advised against it partly on the basis of the risk to Mr Craig and to others. Dr Ewer opined that this sort of work where Mr Craig was required to sit for lengthy periods of time during which thoughts of Vietnam flooded back was particularly unsuited to Mr Craig’s symptoms of PTSD.
22. The Tribunal has reached the view that Mr Craig’s work as a life model cannot be considered remunerative work for the purposes of s 24 of the VE Act. In Re Forrester and Repatriation Commission (AAT 12501 22 December 1997), President Matthews J reviewed the state of the authorities addressing what constitutes remunerative work for the purposes of s 24 of the VE Act. In the course of analysing the relevant case law at [24] Matthews J said:
"In Sheehy v Repatriation Commission (1986) 41 ALD 205 the question arose as to whether a veteran had undertaken "remunerative work" under section 24(1)(c) in the following circumstances. Shortly after his retirement as a fitter in 1982 the veteran obtained work as a storeman, but left after a week because the work was too heavy for him. About 10 years later he attempted a similar job, but again left after two weeks because he could not manage the heavy duties. The Full Federal Court (Wilcox, Whitlam and Lindgren JJ) found that his work as a storeman did not constitute "remunerative work undertaken by the veteran". Their Honours made the following observations (at pp.209-210):
‘... In our opinion, the words "undertake" and "undertaking" in paragraph 24(1)(c) import the notion of "performance" or of a "successful’ or "effective" undertaking of work ... Whether, as we think, paragraph 24(1)(c) requires that the "remunerative work the veteran was undertaking" must have been "performed" or "successfully undertaken" or "effectively undertaken", has not been the subject of a direct decision in the two cases in which the paragraph has been considered by full courts of this court. In Banovich v Repatriation Commission (1986) 69 ALR 395; 11 ALN N142 it was held that the same expression in the predecessor provision did not refer to "the particular job" which the member had previously undertaken but referred to a "type of work" or "field of remunerative activity" (at ALR 402-3). In Starcevich v Repatriation Commission (1987) 14 ALD 160; 18 FCR 221, it was held that paragraph 24(1)(c), and in particular the word "continuing" in that paragraph, does not require that the remunerative work that the veteran is prevented from undertaking be the last remunerative work which he undertook. The construction which we have sought to explain above is consistent with both of these decisions and certain references in Starcevich directly support it. Fox J stated that the loss sustained by the veteran had to be "real" and this indicates that his Honour had in mind remunerative work that had been successfully undertaken. Even more to the point is his Honour's reference to "substantial remunerative work ... undertaken in the past" [Emphasis added]. Similarly, Jenkinson J suggested, although tentatively, that past remunerative work does not satisfy the terms of paragraph 24(1)(c) unless it continued for more than a very short period. In Birtles v Repatriation Commission(1991) 24 ALD 545; 33 FCR 290Hill J understood Starcevich as having excluded from consideration remunerative work which the veteran had undertaken for only a short period. His Honour identified the question to be asked as follows:
... has the veteran by reason of his war incapacity been prevented from "continuing" a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? (at ALD 553; FCR 299)’
Although it is perhaps understandable that there have been references in the cases to a "short" or "very short" period of work, we would prefer to say that the "remunerative work that the veteran was undertaking" must have been "performed or successfully undertaken" or "effectively undertaken"."
Justice Matthews concluded, at [27], that:
“There is no explicit requirement in section 24(1)(c) that remunerative work must be ‘substantial’ in order to attract entitlement under the section, so I do not propose to treat this as determinative of the issues. However it is a powerful consideration.”
23. I have considered the above-mentioned authorities and have concluded first that the life model work undertaken by Mr Craig was not remunerative work that he was undertaking. I make this finding having regard to circumstances including the brevity of the attempts to undertake this work, the duration of the work performed and Mr Craig’s difficulties in doing so, despite two attempts.
24. Circumstances, including the brevity of Mr Craig’s undertaking of fruit picking work (about 5 weeks over 3 years) now 10 years ago, lead me to consider that fruit picking does not satisfy the description in s 24(1)(c) of the VE Act of remunerative work that the veteran was undertaking. I find that for the purposes of s 24 of the VE Act, the only work which Mr Craig has undertaken is work as a soldier.
25. The second question in Flentjar requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the veteran might reasonably undertake. Mr Craig has little or no civilian work experience. As mentioned, the work which he has successfully undertaken was that of a soldier.
26. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
27. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [39]: “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.
28. The Commission argued that Mr Craig was never able to undertake remunerative work as a life model. This Tribunal has so found. It is only with the aid of the ameliorating or deeming provision of s 24(2)(b) of the VE Act (as later explained), that this third question is answered in the affirmative.
29. The fourth question in Flentjar is whether, if Mr Craig has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 24(2)(a)(i) of the VE Act, which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work which he was undertaking for some reason other than the incapacity from war-caused conditions.
30. Mr Craig first argued that he satisfied s 24(1)(c) of the VE Act directly through his inability to work as a life model.
31. In the alternative, Mr Craig argued that if the Tribunal found that his war-caused disabilities did not prevent him continuing to undertake remunerative work that he was undertaking in the form of work as a life model then the Tribunal should find that Mr Craig’s experience of fruit picking and as suggested, a current inability to undertake that work due to war-caused disabilities, was sufficient to satisfy s 24(1)(c) of the VE Act.
32. As mentioned, Mr Craig accepted fruit picking work for a few weeks each year during 1993, 1994 and 1995. By the time of his application, some 10 years had passed since he last performed any fruit picking work. Although at one stage Mr Craig suggested that any resumption of fruit picking as a form of remunerative work was likely to be precluded due to intrusive thoughts of Vietnam, Mr Craig disclosed no desire over the last 10 years to work as a fruit picker. I find that his age at date of application, his motivation and the fact that he has been out of the workforce for many years, would prevent Mr Craig from undertaking fruit picking.
33. It was also argued in the alternative by Mr Craig that his circumstances fall within s 24(2)(b) of the VE Act, being a veteran who has not attained the age of 65 years and who has not been engaged in remunerative work, but one who has been genuinely seeking to engage in remunerative work and would be continuing so to seek to engage in remunerative work but for the substantial contribution made towards his inability to perform that work, by his accepted disabilities. It was suggested that in these circumstances he should be treated as having been prevented, by reasons of his accepted disabilities, from continuing to undertake remunerative work that he was undertaking.
34. The Tribunal considers that Mr Craig did make genuine attempts to engage in remunerative work as a life model, albeit that those attempts were motivated by a belief that by doing so, he would enhance the prospects of success for his application for special rate of pension. In these circumstances, the Tribunal is satisfied that as Mr Craig made genuine attempts to engage in remunerative work, in accordance with s 24(2)(b) of the VE Act, he should be treated as having been prevented, by reason of his war-caused incapacities, from continuing to undertake remunerative work that he was undertaking.
35. Section 24(1)(c) of the VE Act has two limbs. The Tribunal’s finding that Mr Craig should be treated as having been prevented by reason of war-caused incapacity from continuing to undertake remunerative work that he was undertaking satisfies the first limb. The second part of s 24(1)(c) is a requirement that a veteran be suffering a loss of salary or wages or earnings on his own account that he would not be suffering if the veteran were free from his incapacity. It is in relation to this second limb that s 24(2)(a) has application. This sub-section reads as follows:
“(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
…”
36. In this case, the Tribunal finds that Mr Craig ceased to engage in his remunerative work as a soldier for reasons other than an incapacity from war-caused injury and/or disease. It was common ground that Mr Craig ceased to engage in his work as a soldier due to reaching the compulsory retirement age. In such circumstances, s 24(2)(a)(i) of the VE Act directs that a veteran will not satisfy the second necessary limb of s 24(1)(c) and the Tribunal so finds. For theses reasons, the Tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: .....................................................................................
AssociateDates of Hearing 13 April 2007, 18 May 2007 & 23 November 2007
Date of Decision 25 January 2008
Solicitor for the Applicant Mr C Swan
Swan Lawyers
Advocate for the Respondent Mr A Crowe
DVA
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