Crawford and Repatriation Commission (Veterans' entitlements)

[2017] AATA 2191

Crawford and Repatriation Commission (Veterans' entitlements) [2017] AATA 2191 (15 November 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2016/2776

Re:Geoffrey Crawford

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:15 November 2017

Place:Perth

The Tribunal affirms the decision under review.

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Brigadier AG Warner, Member

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – eligible defence service – claim for special rate – alone test – whether ameliorating provisions apply - not entitled to pension at the special rate – decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 – s 23(1)(a)(i) – s 23(1)(c) – s 23(3)(a) – s 23(3)(b)
– s 24(1)(a)(i) – s 24(1)(a)(ii) – s 24(1)(b) – s 24(1)(c) – s 24(2)(a) – s 24(2)(b)
– s 24(3)(b), 120(4)

CASES

Hendy v Repatriation Commission [2003] HCATrans 358
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Richmond [2014] FCAFC 124
Smith v Repatriation Commission (2014) 220 FCR 452

REASONS FOR DECISION

Brigadier AG Warner, Member

15 November 2017

INTRODUCTION

1. Mr Crawford seeks review of a decision of the Veteran’s Review Board (VRB) under the Veterans’ Entitlements Act 1986 (VEA) on 6 April 2016 which affirmed the decision of the Repatriation Commission (the Respondent) that his rate of pension remained at 100% of the General Rate of Pension. The VRB considered that Mr Crawford did not meet the requirements of Special Rate of Pension (SR) pursuant to s 24 of the VEA.

2. The VRB was not reasonably satisfied that Mr Crawford’s incapacity for work was solely because of his accepted conditions for the purposes of s 24(1)(c) of the VEA.  The VRB was also of the view that as Mr Crawford had not been actively seeking any remunerative work since he ceased employment in 2010, the ameliorating provisions of s 24(2)(b) did not apply (T2).

3. Mr Crawford attended the hearing and was represented by Mr Robert Grayden.

   BACKGROUND

4. Mr Crawford is 60 years old.

5. Mr Crawford had eligible defence service in the Australian Army from 9 December 1974 to 18 December 1978.  He was medically discharged due to a back injury.

6. Mr Crawford currently receives a pension at 100% of the general rate.  The conditions of lumbar invertebral disc lesion, onychomycosis and major depressive disorder have been accepted under the VEA.

7. Mr Crawford detailed his work history since discharge from the Army as follows:

   ·Several years in the retail industry managing a haberdashery store;

   ·1988–2000: Divisional manager, Motor Trade Association of WA;

   ·2000–2002: Quality assurance officer, Auto Door Systems;

   ·2002–2006: Store assistant, St Claire Liquor Store; and

   ·2006–2008: Quality assurance officer, Australian Submarine Corporation (Exhibit 2, paras 3-7).

8. In a Lifestyle Questionnaire dated 31 January 2014, Mr Crawford stated that he had retired. He also stated that his disabilities did not stop him working in any way and that he did not intend to seek employment again (Exhibit 3).

9. In a Details of Medical Treatment form dated 21 January 2014, Mr Crawford gave his reason for ceasing work in 2008 as "Retired" (T4/14).

   ISSUES

10. The issues before the Tribunal are whether:

    (a)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under s 21A to be at least 70% or has been so determined by a determination that is in force (s 24(1)(a)(i)); 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

    
    

    (s 24(1)(b)); and

    (c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented 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 (s 24(1)(c)); and

    (d)the veteran has been genuinely seeking to engage in remunerative work, that he would be continuing to seek to engage in, but for the incapacity, and that the war- caused incapacity is the substantive cause of the inability to obtain remunerative work (s 24(2)(b)).

    EVIDENCE

11. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-11, pp 1a-62, Exhibit 1);

    ·Applicant’s Witness Statement dated 21 November 2016 (Exhibit 2);

    ·Lifestyle Questionnaire dated 31 January 2014 (Exhibit 3);

    ·Claim for Disability Pension dated 21 January 2014 (Exhibit 4);

    ·Applicant’s Statement of Facts, Issues and Contentions dated 20 March 2017 (Exhibit 5);

    ·Respondent’s Statement of Issues, Facts and Contentions dated 27 April 2017 (Exhibit 6);

    ·bundle of clinical notes from Fremantle Family Doctors under cover of letter dated 13 October 2016 (Exhibit 7); and

    ·the oral evidence of the Applicant.

    LEGISLATIVE FRAMEWORK

12. Although Mr Crawford has applied for the SR of pension, the Full Federal Court decision of Smith v Repatriation Commission (2014) 220 FCR 452 (Smith) (at [57] and [71]) reminds decision-makers that consideration should be given to the applicability of both the Intermediate Rate (IR) and SR requirements.

13. Subsection 120(4) of the VEA requires the Tribunal to determine the current application to its reasonable satisfaction.

14. In the case of an applicant such as Mr Crawford, who was under the age of 65 at the date of application, eligibility for SR depends on him meeting three tests detailed in s 24 of the VEA.  Briefly these are:

    ·that the degree of service-related incapacity of the veteran is or has been determined to be at least 70% (s 23(1)(a)(i) or s 24(1)(a)(ii)) (the VRB was satisfied that Mr Crawford’s degree of incapacity was at least 70% (T2/2g para 30).  Mr Crawford is currently assessed at 100% of the General Rate and this was not disputed by the Respondent);

    ·that the veteran is totally and permanently incapacitated from accepted war-caused disease or injury, or both, which of themselves alone are of such a nature as to render the veteran incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)); and

    ·that the veteran is by reason of incapacity from accepted disabilities,  prevented from continuing to undertake remunerative work that the veteran was undertaking and is thereby suffering a loss of earnings on his own account that he would not  otherwise  be suffering (s 23(1)(c) or 24(1)(c)).  The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but rather the substantive work that he had undertaken in the past: Hendy v Repatriation Commission (2003) HCA Trans 358.

15. Sections 23(3)(a) and 24(2)(a) provide that for the purpose of sections 23(1)(c) or 24(1)(c) respectively, the veteran cannot rely on a loss of income if the effect of the war-caused injury did not cause him to cease engaging in remunerative work.

16. In Repatriation Commission v Richmond [2014] FCAFC 124 the Full Court said (at [65]):

    We respectfully agree with the learned primary judge’s view (at [108]) where her Honour said:

    ‘The authorities in my view establish that if there is a non war-caused factor which prevents or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it only of secondary weight and insufficient in itself to prevent the veteran from continuing, the ‘alone test’ will not be satisfied’.

    While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.

17. Sections 23(3)(b) and 24(2)(b) of the VEA provide a beneficial easing of the impact of the ‘alone’ test in circumstances where the veteran has not been engaged in remunerative work. Smith establishes that there are three key elements of s 24(3)(b) (or s 23(3)(b)) that the veteran would be required to satisfy:

    (a)he has been genuinely seeking to engage in remunerative work;

    (b)but for the effect of the accepted war caused injury, he would be continuing to seek to engage in remunerative work; and

    (c)the effect of the war-caused injury is the “substantial cause”, and not the sole cause of the veteran’s inability to obtain such work.

    CONSIDERATION

18. Having regard to the evidence at paragraphs 8 and 9 above, the Respondent contends that the Applicant’s war-caused injuries did not cause him to cease to engage in work in 2008. The Respondent contends that Mr Crawford made a decision to retire from employment and that there is no evidence before the Tribunal that supports Mr Crawford’s contention that the decision to retire was because of the effect of his war-caused injuries. Mr Crawford claims that he discussed his need to retire as a consequence of mental health problems with his clinical psychologist, Mr Paul Ryan in 2007.  Mr Ryan did not give evidence in these proceedings.  Relevantly however, contemporary letters from Mr Ryan to Mr Crawford’s general practitioner record:

    He also said that he liked to be organised and was obsessional about punctuality.  Further stressors included recently moving into a new home and Geoff’s desire to retire which he saw as being hampered by the need to keep an eye on his children

    (Exhibit 7, Paul Ryan letter dated 2 July 2007).

    He also is taking a different approach to the idea of retirement and now feels more free within this rather than feeling resentful and held back.  His primary concern is for the welfare of his children …

    (Exhibit 7, Paul Ryan letter dated 11 September 2007).

19. In his witness statement dated 21 November 2016, Mr Crawford stated that between July and December 2007 he was diagnosed as suffering from depression but did not make a claim for that condition because “at the time I was not aware that I could make a claim for my depression” (Exhibit 2, paras 35-37).

20. In his witness statement, Mr Crawford said: “I cannot explain why I would have answered ‘No’ to the question in the Lifestyle Questionnaire dated 7 July 2014 asking whether my disabilities stop me from working in any way” (Exhibit 2, para 54).  In the proceedings before the VRB, Mr Crawford’s advocate sought “to overcome contradictory evidence as to the reason for ceasing work by contending that the applicant did not understand the questions properly” (T2/11, para 59).  Having regard to the importance and purpose of the relevant questions (se paras 8 and 9), the Tribunal does not accept these explanations.

21. The Tribunal concludes from Mr Crawford’s evidence that when he ceased employment in 2008, his intent was to move to Broome and start his own small travel business in which he could work at his own pace and would have the support of his wife and daughter whenever necessary.  It is open to the Tribunal to find that at that time Mr Crawford had a capacity for work, and that his Broome plan was part of his reason for ceasing work.  The Broome business did not eventuate because “unfortunately due to family reasons that plan did not come to fruition and we returned to Perth” (Exhibit 2, para 47). There is no evidence before the Tribunal that Mr Crawford’s health or conditions were the reason for terminating the Broome plan.

22. In a medical report dated 22 January 2015, Dr M Walsh in relation to Mr Crawford’s back pain opined: “Unchanged symptoms over past 20+ years” (T6/30).   Mr Crawford’s employment history (see paragraph 7) indicates that he was employed in a number of capacities during much of that 20 year period.

23. After his return from Broome Mr Crawford attempted a small business conducting safety audits, however realised that his qualifications were no longer current and that he would need to update them (Exhibit 2, paras 48-51).  In relation to the two intended small business plans, Mr Crawford in his witness statement opined (Exhibit 2, para 52):

    Preparations for both business ventures did not get very far at all and in hindsight I  realise there was little prospect that I could have operated a successful business.

24. The Tribunal finds the Applicant’s own contemporaneous recording compelling, when, on 31 January 2014 he noted that he had retired in 2008, that his disabilities did not stop him working in any way and that he did not intend to seek employment again. In light of this, the Tribunal finds that the Applicant does not meet sections 23(1)(c) or 24(1)(c) of the VEA and is not eligible for IR or SR.

25. The beneficial easing of the alone test pursuant to s 23(3)(b) and s 24(3)(b) of the VEA is detailed at paragraph 19 above.  Where the veteran has not been engaged in remunerative work, and the veteran satisfies the three requirements, he or she is deemed to have met the second criteria in s 24(1)(c), namely that the veteran is prevented solely by the effect of the war-caused injury from engaging in the previous remunerative work.

26. In determining whether the ameliorating provisions of s 24(2)(b) have application in the present matter, the critical issue is whether the Tribunal can be reasonably satisfied that Mr Crawford has been genuinely seeking to engage in remunerative work.  The Federal Court decision of Leane v Repatriation Commission (2004) FCAFC 83; 81 ALD 625 establishes that the Tribunal has to be satisfied that the applicant is honestly trying to engage in remunerative work.

27. Mr Crawford has not provided evidence that he sought employment between 2008 and 2014.

28. Mr Crawford has provided a list of job applications he claims to have made in the period October to December 2014 (T3/13).  The present review is of course de novo, however the Tribunal considers the VRB comment on this list relevant to the present proceedings:

    The first application for work was 18 October 2014.  This was some seven years after the applicant’s last paid work and shortly before the application under review was lodged.  Thereafter, two applications per week were made up until 27 December 2014.  Mr West told the Board that he had advised the applicant to look for work to satisfy the claim.  As noted earlier in these reasons, in response to questions from the Board the applicant insisted that the applications were genuine attempts to seek work (T2/2k, para 53).

    It is not enough to simply seek work, the applicant must do so genuinely.  A genuine attempt to seek work carries with it a belief in capacity to do the work.  In this case, the applicant has steadfastly maintained that he has no capacity at all for work (T2/2k, para 55).

29. Having further careful regard to the relatively short period in which these claimed applications were made by Mr Crawford, and the spacing of the applications during that period, the Tribunal reaches a similar conclusion to that of the VRB, and is unable to be reasonably satisfied that Mr Crawford was at any time genuinely seeking work.  Consequently, the Tribunal determines that Mr Crawford is unable to rely on the ameliorating provisions s 23(3)(b) or s 24(3)(b) of the VEA.

30. Even if the Tribunal were to accept that these applications constituted genuine attempts to find work, there is no evidence before the Tribunal that Mr Crawford’s accepted war-caused injuries are the substantial cause of his inability to secure the positions for which he applied.  Mr Crawford told the Tribunal that his applications resulted in no replies, no interviews and no work trials.  In his witness statement dated 21 November 2016, Mr Crawford stated: “I did not think of keeping records, and would not have kept them anyway once the application was unsuccessful” (Exhibit 2, para 67).

31. Before the Tribunal, Mr Crawford said that one of his job applications was to the Motor Trade Association where he had previously worked but received no response.  Mr Crawford said that he had left that employment after a “blow-up” with a member.

32. The Tribunal notes that non war-caused reasons for applications for employment failing to elicit a response from an employer might include age, length of time out of the workforce, lack of the necessary employment skills, and a highly competitive market place.  However, Mr Crawford’s evidence is simply that he received no responses to his applications; it is not a case where Mr Crawford was found to be unable to undertake the inherent requirements of the jobs for which he applied.  Consequently, the Tribunal is satisfied that the third element of the ameliorating provisions has not been met.

    CONCLUSION

33. Having carefully considered the evidence and circumstances of this matter, the Tribunal is satisfied that Mr Crawford does not satisfy the requirements for IR or SR contained in s 23 and s 24 of the VEA.  It follows from the reasons given above that the decision under review is affirmed.

    DECISION

34. The Tribunal affirms the decision under review.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant - Legal

Dated: 15 November 2017

Date of hearing:	8 June 2017
Applicant:	In person
Representative for the  Applicant:	Mr R Grayden
Solicitors for the Applicant:	Robert Grayden Legal
Respondent for the  Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers