Dale and Repatriation Commission
[2003] AATA 1317
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1317
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/415
VETERANS’ APPEALS DIVISION ) Re ROGER DALE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date22 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – assessment – special rate of pension – whether applicant’s war caused disabilities alone prevent him from working – applicant unable to obtain work due to non-service related conditions, his age and the amount of time he has been out of the workforce - ameliorating provisions – applicant has not made genuine attempts to seek work – decision affirmed
Veterans’ Entitlements Act 1986
Re Hall and Repatriation Commission (1994) 33 ALD 454
Re Bonner and Repatriation Commission (1989) 17 ALD 680
Re Horney and Repatriation Commission (1998) 52 ALD 317
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317REASONS FOR DECISION
23 December 2003 Mr O Rinaudo, Member 1. This application is made by Roger Dale (‘the applicant”) for a review of a decision of the Veterans’ Review Board dated 22 April 2002 which set aside part of the decision of the Repatriation Commission delegate dated 19 January 2000 increasing the disability pension from 60% of the general rate to 100% of the general rate from 18 December 2000. The applicant is claiming for the special rate pension pursuant to section 24 of the Veterans’ Entitlements Act 1986 (‘the Act”)
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21) and documentary evidence as follows:
§Exhibit 2 Applicant’s statement dated 23 July 2001
§Exhibit 3 Applicant’s statement dated 24 July 2002
§Exhibit 4 Invalidity Service Pension Claim dated 28 May 1999
§Exhibit 5 Discharge or Transfer Certificate relating to the applicant dated 5 July 1996 and attached to an extract of section 39 of the Defence Force Act 1903.
3. The applicant was represented by Mr D O’Gorman of Counsel and the respondent was represented by Mr J Kelly, a Departmental Advocate. The applicant gave oral evidence.
4. The applicant was born on 8 April 1946 and served with the Australian Army from 21 November 1963 until his discharge on 7 July 1996. He performed operational service in Vietnam, from 27 May 1965 to 11 June 1966, and eligible defence service from 7 December 1972 to 7 July 1996. At the time of his discharge the applicant had attained the rank of Staff Sergeant and was undertaking the duties of quartermaster/storeman.
5. The applicant’s accepted service related disabilities are:
§Chronic Solar skin damage
§Non-melanotic neoplasm of the skin
§Post Traumatic Stress Disorder
§Irritable Bowel Syndrome
§Undifferentiated somatoform disorder
§Depressive Disorder
6. The applicant’s non-service related disabilities are:
§Hypertension
§Diabetes Mellitus
§Ischaemic Heart Disease
7. The respondent conceded that the applicant satisfies section 24(1)(b) and (c) of the Act. The issue before the Tribunal is whether, pursuant to section 24(1)(c) of the Act, the applicant’s war-caused conditions alone prevented him from undertaking remunerative work which resulted in a loss of salary, wages or earnings. Alternatively, if the applicant fails to satisfy the “alone test”, the Tribunal must consider whether the applicant’s war-caused conditions substantially contributed to his inability to undertake remunerative work and whether the applicant was genuinely seeking to undertake employment, pursuant to the ameliorating provisions in section 24(2)(b) of the Act.
Legislative Framework
8. The relevant provisions of the Act are as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
…
(c) the veteran is, by reason of incapacity from that war-caused injury or 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;
…
(2) For the purpose of paragraph (1)(c):
...
(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”.
Applicant’s Evidence
9. In his written statement dated 24 May 2002 (Exhibit 3), the applicant describes how his accepted service related disabilities are preventing him from undertaking remunerative work. The relevant extracts are as follows:
“2.The last full time work that I did was as a quarter master and truck-driver in the Australian Army.
3.My accepted conditions made it impossible for me to keep working.
4.I finished work in July of 1996. I was sick at the time. I had problems with my bowel and with constant vomiting. I just could not keep up anymore.
5.I would be driving on a long run and I’d be constantly looking for the next service station so that I could either throw up or go to the toilet.
6.When I was at work it was a one man depot. I kept having to go off and vomit. When I got home my daughter knew that I had returned as he could hear me throwing up beside the shed.
7.My bowel would block up for a few days and cause me great pain. I used to have to walk it off. For the next three days it would run like water. It was bad then, but it is a lot worse now. Basically I have no control over it at all and it made it very difficult for me to carry out my duties. I was in a dept on my own. What could I do. My bowel problem made driving for long stretches very difficult.
8.I had regular vomiting attacks. I used to put the vomiting attacks down to nerves until I was told by a doctor that they were associated with the bowel problem.
9.When my PTSD started to become severe I found that I could not sleep. I went to Dr Brown. I still see him about it every 8 weeks. He has put me on a number of different anti-depressants, but none of them work.
10.Mt PTSD makes me cranky and irritable. I am very short-tempered. I have had a gut full of everything.
…
12.I vomit every few hours most days. If I want to talk to someone I have to not eat so that I can get through the conversation without throwing up or rushing to the toilet. Sometimes I am very nauseous. I cough and cough, but nothing happens and I have to put my fingers down my throat. It is very painful and not very pleasant.
13.The bowel condition has become worse also. It is either blocked up or like water. I have no control over it.
14.It is because of these conditions alone that I am completely housebound.
…
16.Of course I am unemployable. The psychiatrists have said that my PTSD alone renders me unemployable. That may be the case, but I can’t even get out of the house because of the vomiting and my bowel condition. I am completely housebound.
…
19.The drugs that I take for PTSD and depression make it difficult for me to get up in the morning”.
10. In his oral evidence the applicant confirmed that the contents of his statements were true and correct and provided the following additional evidence:
(a)During 1995 –1996, the applicant was stationed in Mackay working as a quartermaster/storeman and operating the army reserve supply depot;
(b)The applicant’s last working day was 18 December 1995, he was formally discharged from the army in July 1996 and has not been in employment since;
(c)The applicant stated that he left the army because he could no longer carry out his duties. He said that he was under stress, his nausea and bowel problems were becoming more severe and that he was now experiencing headaches;
(d)The applicant stated that it was his intention to purchase two buses to take retirees and pensioners on day trips to Summerset for lunch and that his family would provide him with assistance in this venture. He said that he ultimately did not purchase the buses because he would have incurred a $160,000 debt, which he could not afford to repay.
11. Under cross examination the applicant gave the following evidence:
(a)He held the position of Staff Sergeant and worked at the depot seven days per week from 6:00am to 6:00pm and was on call 24 hours per day;
(b)He was on sick leave for 6 months prior to his discharge from the army;
(c)Prior to his discharge, on 18 June 1996, the applicant underwent a Medical Board examination but was unaware of his classification;
(d)With regard to the purchase of the two buses the applicant stated that he had made some telephone enquires, including to the Sandgate Freemasons Home, to ascertain the viability of the venture;
(e)He stated that he had priced the buses but did not purchase them;
(f)He said that he requested a retirement discharge after being told that he had nowhere else to go;
(g)He subsequently lodged an invalidity pension claim with Centrelink on 28 May 1999, in his claim he stated that his hypertension, diabetes, ischaemic heart disease (onset in 1996), vomiting (onset 1960) and migraine headaches (onset 1997) had been deteriorating.
Submissions
12. Mr O’Gorman for the applicant submitted that whilst the applicant was at an age where he could have retired, he was not discharged for this reason. It was not the applicant’s personal choice to leave the army, he was prevented from continuing his service due to his service related disabilities.
13. It was further submitted that the applicant had an intention to undertake remunerative work but when it came to time to actively peruse employment the applicant was too sick. Mr O’Gorman referred the Tribunal to the Federal Court decision of Spender J in Re Hall and Repatriation Commission (1994) 33 ALD 454 and submitted that whether the applicant had been genuinely seeking to engage in remunerative work and but for his incapacity would be continuing to do so, had to be addressed in a realistic manner having regard to the nature and extent of the incapacity. It was submitted that given the nature, extent and severity of the applicant’s conditions he was prevented from making job applications and the requirement to do so would have been a charade.
14. Mr Kelly for the respondent submitted that in his Medical Board Examinations of 4 March 1996 and 18 June 1996 certified him “home only” meaning that his fitness classification would prevent him from being posted overseas but was fit enough to be posted to any urban area within Australia.
15. It was further submitted that the applicant was not discharged on medical grounds and that he had decided to take retirement. The respondent submitted that the reference to the applicant having nowhere else to go in his career was a reference to the applicant having exhausted all promotional opportunities and not a reference to the applicant’s position in the army being no longer tenable.
16. Mr Kelly submitted that when the applicant was discharged from the army he did not genuinely seek remunerative work. Mr Kelly referred the Tribunal to Re Bonner and Repatriation Commission (1989) 17 ALD 680 and Re Horney and Repatriation Commission (1998) 52 ALD 317 where it was said that the use of the word “genuinely” indicated that there must be some objective signs of active pursuit of remunerative work.
Consideration
17. The second reading speech introducing the special rate pension in 1985 contained the following passage:
“The TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or retired voluntarily or has left the employment for reasons other than accepted disabilities, a TPI pension is not payable.”
18. In order for the applicant to succeed in his application the Tribunal must be satisfied that applicant satisfies the “alone test” in section 24(1)(c) of the Act. The test requires that the applicant’s loss of employment must be the result of accepted disabilities and not due to other factors. Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 is commonly cited as the approach to be adopted in assessing whether an applicant satisfies the “alone test”. Burchett J stated that to characterise the test as “the sole, unique and absolute cause” of the cessation of remunerative work was incorrect because it has the tendency (at 539):
“…to distract the tribunal from its true task – 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 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.”
19. Factors which are considered in militating against satisfying the “alone test” include advanced age, length of time out of the workplace, state of the labour market and non-war-related factors.
20. Based on the information before it the Tribunal is satisfied that the applicant, although classified as “home only”, was medically fit at the time of his discharge from the army and that the applicant retired voluntarily at aged 50 years.
21. As at the date of application, the applicant is aged 57 years, and whilst not at the standard retirement age of 65 years, the Tribunal is of the view that community opinion with regard to the effect of age on the ability to engage in remunerative work would act as a substantial bar to obtaining employment. The applicant is competing in a job market with people considerably younger than himself.
22. The applicant’s age and his inability to obtain employment is compounded by his length of time out of the labour market. The applicant has not been engaged in remunerative work since 1996, notwithstanding that the applicant holds a management diploma. The applicant was a career soldier with a limited skill base beyond the army. When considered with his time out of the labour market it is doubtful that a prospective employer would share the view that the applicant could undertake computer and clerical work. The competitive nature of the labour market would require current skills and current experience..
23. The Tribunal has also had regard to the applicant’s non-service related disabilities and their impact on his ability to undertake remunerative work. The applicant suffers from cardiomyopathy, hypertension and diabetes. Dr Shaw stated that these conditions have a significant impact on his daily life. The diabetes causes lethargy in the applicant, ischaemic heart disease causes the applicant palpitations and tremor and some nausea. The applicant stated that he frequently gets chest pains and becomes short of breath quite easily.
24. Having considered all of these factors the Tribunal finds that the applicant’s voluntary retirement, age, length of time out of the workforce and non-service related disabilities contribute to the applicant’s inability to engage in remunerative work and therefore, does not satisfy the “alone” test under section 24(1)(c) of the Act.
25. The next issue that the Tribunal must consider is whether the ameliorating provision, section 24(2)(b) of the Act, applies. There are two factors that must be satisfied:
(a)That the applicant has been genuinely seeking to engage in remunerative work; and
(b)That the incapacity is the substantial cause of the inability to obtain remunerative work.
26. In considering whether the applicant has “genuinely” been seeking remunerative work the Tribunal must be satisfied that there is some objective sign of active pursuit of employment.
27. The reference to the words “substantial cause” has been substituted for the “alone” test provided that the other pre-condition is satisfied. In Fox v Repatriation Commission (1997) 45 ALD 317, Kiefel J summarised the approach to be taken as follows (at 319-320):
“The words ‘the substantial cause’ require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more that any other explains it. That something might be a “substantial cause” has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as “substantial”… The definite article in s24(2) of the Act…requires a stronger more direct causal connexion between the incapacity and inability to obtain remunerative work.”
28. With regard to the first pre-condition, the Tribunal is not satisfied that the applicant has been “genuinely” seeking remunerative work. While that applicant made some enquires about the purchase of two buses there were no firm plans to establish a small business, thereby, becoming self-employed. The applicant contacted Centrelink concerning a disability support pension but did not make any arrangements to find employment. There is no evidence that the applicant actively sought and applied for any other employment opportunities in the areas he had nominated, namely computer and clerical work.
29. Given that the applicant does not satisfy the first pre-conditions there is not need to the Tribunal to consider the application of the second pre-condition.
Decision
30. For the reasons stated above the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 5 February 2003
Date of Decision 22 December 2003
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr J Kelly, Departmental Advocate
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