DAMIEN JOSEPH VELLA and REPATRIATION COMMISSION
[2009] AATA 472
•26 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 472
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2694
VETERANS' APPEALS DIVISION ) Re DAMIEN JOSEPH VELLA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan, Member
Brigadier C Ermert (Retd), MemberDate26 June 2009
PlaceMelbourne
Decision The Tribunal:
· sets aside part of the decision under review and substitutes the decision that Mr Vella’s generalised anxiety disorder is war-caused;
· affirms part of the decision under review that Mr Vella’s sleep apnoea is not war-caused; and
· sets aside part of the decision under review and decides that Mr Vella is entitled to be paid a pension at the Special Rate from 4 January 2007.
(sgd) EA Shanahan
Member
VETERANS’ AFFAIRS ‑ operational service – accepted impairment rating of 100 per cent - accepted war-caused disability of ischaemic heart disease – respondent concedes war-caused generalised anxiety disease – veteran ceased work because of heart problems – whether qualified for special rate - four Flentjar questions – type of remunerative work – prevented from continuing work by war-caused conditions – no other factors affect the continuation of remunerative work – s.24 of the Act satisfied – qualified for disability pension at Special Rate – decision altered
Veterans’ Entitlements Act 1986 ss 23, 24
Flentjar v Repatriation Commission (1997) 48
Chambers v Repatriation Commission [1995] FCA 1144
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Alexander (2002) 75 ALD 329
REASONS FOR DECISION
26 June 2009 Miss EA Shanahan, Member
Brigadier C. Ermert (Retd), Member
INTRODUCTION
2. Mr Vella, the applicant, joined the Royal Australian Navy in 1964 and was discharged in 1975. He had operational service in Vietnam in 1967 and 1968. Mr Vella’s work history after his discharge included positions as a wire rope splicer, postman, labourer, press operator, milk bar proprietor, dairy depot manager, labourer and production supervisor.
3. Mr Vella suffered a heart attack in May1993. Although he returned to work, he was retrenched in July 1993. In 1994 Mr Vella commenced employment with Auspine Pty Ltd as Area Manager Supervisor. In April 1995 he suffered severe chest pains and was admitted to hospital with an anterolateral myocardial infarction. He was discharged on 16 April 1995 having made an uneventful recovery. However, on 2 June 1995 Mr Vella resigned from Auspine. In 1997 Mr Vella and his wife attempted to do some fruit picking to earn money to help with expenses for his daughter’s wedding. After ten days he had to stop as a result of his increasing chest pains. In 2004 Mr Vella was offered and accepted part-time work as a handyman. The job was generally for three days a week and Mr Vella could work in his own time and at his own pace. He worked in this position for four months. Mr Vella resigned the position after an occasion when he had to call on his wife to assist him at work. He has not worked since.
4. On 4 April 2007 Mr Vella lodged a claim with the Repatriation Commission (the Commission) for generalised anxiety disorder (GAD) and sleep apnoea to be accepted as war-caused injuries and for an increase in his pension to special rate.(Mr Vella was already receiving pension at 100 per cent of the general rate). The application was refused on 29 May 2007. Mr Vella applied to the Veterans’ Review Board (VRB) for a review of the decision. On 23 April 2008 the VRB affirmed the decision. This matter is an application for review of that VRB decision.
5. Mr Vella’s has a number of conditions which the Commission has accepted as being war-caused, including ischaemic heart disease (IHD). The respondent has conceded that generalised anxiety disorder (GAD) is a war-caused disease from 4 January 2007.
THE HEARING
6. At the hearing Mr Vella was represented by Mr Andrew Larkin of Counsel. The Commission was represented by Mr Ken Rudge of the Advocacy Section of the Department of Veterans’ Affairs. The Tribunal heard evidence from Mr Vella, Dr Clayton Thomas, consultant in rehabilitation and pain medicine, Dr Matthew Wood, general practitioner, and Dr Robyn Horsley, occupational physician. The Tribunal took into evidence three documents from Mr Vella, marked as Exhibits A1 to A3, and 15 documents from the Commission, marked Exhibits R1 to R15.
THE ISSUES
7.
The first issue to be determined is whether Mr Vella’s GAD and sleep apnoea are war-caused conditions. The next issue is whether Mr Vella is entitled to be paid a pension at a rate greater than 100 per cent of the general rate.
Is Mr Vella’s GAD war-caused?
8. In 2007 Dr G D’Ortenzio, psychiatrist, saw Mr Vella at the request of the Commission and diagnosed a GAD arising from Mr Vella’s general apprehension during his tours of Vietnam, superimposed on anxiety symptoms well documented in Mr Vella’s service medical history. (T10, p59) Mr Vella’s anxiety symptoms had become more prominent since his two episodes of myocardial infarction.
9. Dr Barrie Kenny, consultant psychiatrist, saw Mr Vella on 13 November 2008 at the Commission’s request and diagnosed him as having an obsessive compulsive personality structure with a lifelong tendency to worry about anxiety stressors beyond his control. Dr Kenny thought Mr Vella’s experiences in Vietnam had resulted in mild GAD with flair ups in response to stressors.
10. The VRB determined that Mr Vella’s GAD was not war-caused. However, since then the Commission has conceded that Mr Vella’s GAD was in fact war‑caused. The Tribunal, based on the evidence, finds this concession to be well‑founded. Accordingly, the Tribunal finds that Mr Vella’s GAD is war-caused.
Is Mr Vella’s Sleep Apnoea war-caused?
11. Mr Vella underwent uvulopalatoplasty on 16 January 1997 for snoring and presumably sleep apnoea, without benefit. Further investigation and review by several ear, nose and throat specialists and sleep physicians confirmed the diagnosis and treatment with CPAP (controlled positive airways pressure) was commenced in 1998. Numerous difficulties were encountered in achieving a well fitting and tolerable mask and a reliable machine setting, but these have now been overcome and Mr Vella sleeps well. The only relevant factors linking sleep apnoea to defence service are provided for in the Statement of Principles (SoP) concerning Sleep Apnoea (Instrument No 13 of 2005). Those factors are Factor 5(a) (having chronic obstruction of the upper airways at the time of the clinical onset of sleep apnoea) or Factor 5(e) (having congestive cardiac failure at the time of the clinical onset of sleep apnoea).
12. Mr Vella has undergone uvulopalatoplasty and a surgical correction of septal deviation; and while he has non-accepted chronic seasonal rhinitis, he has been seen by several ear, nose and throat surgeons and all have declared his upper airways clear and capacious. Mr Vella has undergone three coronary angiograms with left ventricular angiography, is regularly reviewed by his physician and cardiologist, Dr Hengel, and has been assessed by Professor Richard Harper, cardiologist. Neither has detected any evidence of congestive cardiac failure as defined in the relevant SoP as being a clinical syndrome due to heart disease, resulting in congestion in the peripheral circulation with or without congestion of the lungs. No signs of either right or left heart failure have been reported with no peripheral signs of cardiac failure ever having been described.
13. Based on the evidence the Tribunal is reasonably satisfied that Mr Vella’s sleep apnoea does not meet any of the factors in Instrument No 13 of 2005 that must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting sleep apnoea to circumstances of Mr Vella’s service. Therefore, the Tribunal finds that Mr Vella’s sleep apnoea is not war-caused.
Higher Rate of Pension
14. The next issue to be determined is whether Mr Vella is entitled to be paid a pension at a rate greater than 100 per cent of the general rate.
15. The provisions for the payment of pension at rates greater than 100 per cent of the general rate are contained in section 23 (intermediate rate of pension) and section 24 of the Act (special rate of pension). The provisions for entitlement are the same for both rates, except for the capacity of the veteran to undertake remunerative work. For the intermediate rate, section 23 provides that a veteran must be incapable of working more than 20 hours per week, whereas for the special rate section 24 provides a limit of 8 hours per week. For simplicity, these reasons for decision will consider only the provisions of section 24, unless or until there is a need to consider also section 23.
Special Rate of Pension
16. Entitlement to payment of a special rate of pension is provided for in section 24 of the Act. The relevant sections are:
24 Special rate of pension
(1)This section applies to a veteran if:
(aa) 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
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury … is determined under section 21A to be at least 70% … ; or
(ii)… ; 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; 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
…
17. There is no dispute between the parties that sections 24(1)(aa) and 24(1)(aab) are satisfied. The respondent has already found that Mr Vella’s degree of incapacity from war-caused injuries to be 100 per cent. Hence, the Tribunal finds that sections 24(1)(aa), (aab) and (a) are satisfied.
18. In considering Mr Vella’s capacity to undertake remunerative work the Tribunal notes the four questions to be answered, as set out in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4, 5:
1.What was the relevant “remunerative work that the veteran was undertaking” within … s24(1)(c) of the Act?
2.Is the veteran, by reason of the war-caused injury or … 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 … 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 own account that he would not be suffering if he were free of that incapacity.
What was the relevant remunerative work that the veteran was undertaking?
19. The first issue to be determined is the type of remunerative work that Mr Vella was undertaking. Mr Vella’s employment record is contained in Exhibit A3 and shows a history of work as a machine operator, postman, milk bar proprietor, dairy depot manager and timber factory supervisor. In addition Mr Vella gave evidence of short periods of work as a fruit picker and handyman.
20. Dr Thomas gave evidence that Mr Vella’s back problems would place some restrictions on the type of manual work that he would be capable of. Mr Larkin submitted that Mr Vella’s work was multi-skilled manual work with a capacity to supervise others. Mr Rudge made no submissions in regard to the type of work that Mr Vella was undertaking.
21. The Tribunal is satisfied from the evidence before it that the type of work that Mr Vella was undertaking can be described as light, multi-skilled, manual work with a capacity to supervise others.
Is the veteran prevented by his war-caused Injuries from continuing that work?
22. The second Flentjar question requires the Tribunal to determine whether Mr Vella’s war-caused injuries prevent him from continuing his remunerative work. Mr Vella’s war-caused injuries for which the Commission has accepted liability are IHD, peptic ulcer disease, sensorineural hearing loss of the left ear with tinnitus, diabetes mellitus and periodontitis. As a result of the Tribunal’s earlier finding, Mr Vella’s GAD is also a war-caused injury.
23. Mr Vella’s evidence is that he ceased full-time employment at Auspine after his second heart attack. His treating doctor at the time, Dr Lee, indicated that it would be unwise for Mr Vella to resume work because of his heart condition. In his oral evidence Mr Vella confirmed that he ceased his work at Auspine because of his heart condition. Mr Vella also said that he had to cease his fruit picking work after ten days because his chest pains got worse. He said that in 2004 he ceased his part-time handyman work after only four months due to fatigue and angina pain. He said that after a couple of hours at work he would suffer angina pain which caused him to stop and rest. He would even have to stop while driving home. Mr Vella recounted an occasion when he had to ask his wife to help him with a task at work.
24. Dr Barrie Kenny in addition to diagnosing GAD arising from Mr Vella’s Vietnam experience was of the opinion the advent of symptoms of ischaemic heart disease had provided an ongoing stressor, exacerbating the underlying anxiety disorder to such a degree that the combination of GAD and IHD rendered Mr Vella unfit for any effective employment.
25. Doctors Clayton Thomas and Robyn Horsley, both of whom are occupational health physicians, assessed Mr Vella’s work capacity. Both gave evidence before the Tribunal and both identified Mr Vella’s IHD as the condition rendering him incapacitated for work for more than eight hours per week.
26. All of the material points to Mr Vella being unable to work for remuneration because of his IHD, an accepted disability. The reporting medical practitioners have all identified IHD as the cause of his total incapacity for work. There is no dissenting opinion.
27. Mr Larkin submitted that the evidence from Professor Harper, Dr Kenny, Mr Vella’s treating doctor and Dr Thomas was unanimous: Mr Vella had no capacity for work as a result of his IHD. Mr Larkin also noted that the respondent had conceded that section 24(1)(b) of the Act was satisfied in this case. Mr Rudge made no submissions on this issue.
28. After considering the evidence, the Tribunal is reasonably satisfied that Mr Vella’s accepted war-caused disease of IHD renders him incapable of undertaking his remunerative work for periods exceeding 8 hours per week.
Are war-caused injuries the only factor preventing remunerative work?
29. The third Flentjar question requires the Tribunal to determine whether it is Mr Vella’s war-caused injuries alone which prevent him from continuing to undertake his remunerative work. The question for this Tribunal is whether any of Mr Vella’s conditions for which the Commission does not accept liability or any other factors contribute to his incapacity for work.
30. Mr Vella suffers from nocturia, sporadic incontinence of urine, lumbar spondylosis and sleep apnoea, medical conditions for which the Commission does not accept liability. The urinary symptoms of nocturia and incontinence have been fully investigated by Mr McMillan, urologist, and no cause found. It has been argued that the nocturia, by disturbing Mr Vella’s sleep, contribute to daytime fatigue and reduced work capacity, whereas the incontinence would merely be an inconvenience. However, both of these symptoms appear to have resolved in the past 18 months according to Mr Vella’s treating general practitioner, Dr Wood.
31. Mr Vella claimed his lumbar spondylosis was war-caused in 1998, based on a back injury he said he suffered while in the Navy. As there was no record or such an injury in his service medical history his claim was rejected. He has experienced sporadic and chronic lumbar back pain since 1964 with bouts of pain occurring approximately once per month. The pain radiates to his left thigh and calf, limiting his sitting tolerance to 60 minutes. His walking tolerance is now limited to 200 metres, at which distance he develops shortness of breath. CT scanning of the lumbar spine has revealed mild facet joint disease at T12/L1 and mild disc narrowing and facet joint disease at L1/2 and L2/3. Mild disc narrowing and facet joint degenerative changes were present at L4/L5 and L5/S1. The CT scan did not show any disc protrusion. Despite his back pain Mr Vella had an exemplary work record until he stopped working in 1995 after his second myocardial infarct.
32. In his statement dated 24 June 2008 (Exhibit A1) Mr Vella said My sole reason for ceasing work at that stage was the cardiac complaint. Neither my anxiety disorder nor my back condition made any contribution to my decision to work at that stage. Mr Vella said that while his back pain caused him discomfort at times he had had only one day off work throughout his entire working life.
33. Mr Vella said that his sleep apnoea had no effect on his employment. He said that he had been told by Dr Spring that it was related to his heart disease. Mr Vella said that his use of a CPAP machine gave him relief from the effects of sleep apnoea. He was questioned about reports of tiredness at work in the notes of Dr Wood (Exhibit R9). Mr Vella said the tiredness was caused by the difficulties he was experiencing with poorly fitting masks for the CPAP machine. When questioned repeatedly about an incident where he ran off the road while driving home from work, Mr Vella said that it was not as a result of falling asleep. Mr Vella said that he lost concentration and was not fully aware of his situation. He stopped to rest as he did not have his spray for his heart condition. Mr Vella also said that his incontinence caused no problems with his work.
34. Doctors Thomas and Horsley assessed Mr Vella’s work capacity and considered any contribution to this incapacity by the medical conditions for which the Commission did not accept liability. (Ex A2, R4 & R5). Both doctors gave evidence before the Tribunal and both identified Mr Vella’s IHD as the condition rendering him incapacitated for work for more than eight hours per week. Dr Thomas opined that Mr Vella’s lumbar spondylosis did not impact on his performance of the type of work undertaken by him for the last 20 years prior to his retirement.
35. In addition to the nocturia, sporadic incontinence of urine, lumbar spondylosis and sleep apnoea,, Dr Horsley recorded Mr Vella as suffering from right knee discomfort which she attributed to degenerative disease; intermittent left shoulder discomfort with no decrease in the range of movement of this joint; and left ulnar nerve compression at the elbow level, which had been successfully treated by surgical decompression in June 2008 leaving residual marked wasting of the first interosseous muscle affecting grip strength.
36. A physical examination conducted by Dr Horsley of the lumbar spine revealed mild to moderate reduction in the range of movement and slight muscle wasting in the left lower limb. While Mr Vella’s spinal symptoms reduced his sitting and standing times, Dr Horsley considered his walking distance limitation (of 200 metres) to be due to shortness of breath presumably of cardiac origin rather than the back pain. She opined that Mr Vella’s sleep apnoea would not impact upon his capacity to work unless it was not well controlled. Such an impact would be by way of daytime fatigue. She noted that Mr Vella had confined his driving to 15 minute trips, for fear of losing concentration and perhaps nodding off while driving.
37. Dr Horsley gave evidence that Mr Vella’s IHD is the dominant condition affecting his work capacity. Other conditions that affect his work capacity are fatigue and shortness of breath, the causes of which are multi-factorial, with his heart condition being the predominant factor. Sleep apnoea affects his concentration and could contribute to his fatigue. Other issues affecting his work capacity were Mr Vella’s age, education and time out of the workforce. Dr Horsley agreed with Professor Harper that Mr Vella’s IHD prevents him from working more than eight hours per week.
38. Dr Wood gave evidence that Mr Vella continued to work despite his back pain. Dr Wood agreed that Mr Vella’s IHD, sleep apnoea, low back pain and his age and time out of the workforce all contribute to his capacity to work. He said that Mr Vella’s incontinence has not contributed to his work capacity.
39. Mr Rudge submitted that a number of non war-caused conditions contribute to Mr Vella’s inability to continue to undertake remunerative work. He cited the following documentary evidence:
·Mr Vella’s application for an invalidity pension (Exhibit R11), in which he included lumbar spondylosis as one of the conditions for his invalidity;
·Mr Vella’s work history statement (Exhibit A3), in which he stated that three injuries, including lumbar spondylosis, have caused pain, discomfort and work restrictions during his employment prior to retirement;
·The Lifestyle Questionnaire signed by Mr Vella (Exhibit R14), in which he listed an inability to sit for any length of time, his sleep condition and incontinence as problems affecting his mobility;
·Mr Vella’s application for an increase in pension (T documents page 9), in which he listed sleep apnoea as a disability with the comment always want to sleep during the daytime;
·Mr Vella’s Employment Questionnaire (T documents page 37), in which he included sleep apnoea and lower back spinal deterioration as conditions preventing his employment; and
·The opinions of Dr Wood in a medical impairment assessment (T documents page 33), in which he included sleep apnoea and low back pain together with IHD and anxiety as medical conditions which reduce the veteran’s ability to work.
40. Mr Rudge also referred to the evidence of Dr Horsley, that Mr Vella’s lumbar spondylosis, sleep apnoea, nocturia, time out of work, age and employability were all factors which contributed to Mr Vella’s inability to continue to undertake remunerative work. Mr Rudge further submitted that Dr Thomas, in his evidence, accepted that employability is an issue in Mr Vella’s ability to undertake remunerative work.
41. Mr Rudge referred the Tribunal to the decision of the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47, in which their Honours said that the decision maker is to take into account any factor that plays a part or contributes to the veteran’s being prevented from continuing to engage in remunerative work. Mr Rudge also referred to the decision of the Federal Court in Forbes v Repatriation Commission (1999) 58 ALD 394, in which Nicholson J said that the presence of a non war-caused condition in combination with war-caused conditions will deny the veteran qualification for the special rate of pension. Mr Rudge finally referred to the decision of the Federal Court in Repatriation Commission v Alexander (2002) 75 ALD 329, in which Spender J said that if non war‑caused conditions, even of secondary importance, were a factor in preventing the veteran from continuing to undertake remunerative work then the alone requirements of section 24(1)(c) of the Act would not be satisfied.
42. Mr Rudge submitted that the Tribunal should be satisfied that one or more of the non war-caused factors contributed to Mr Vella’s inability to continue his remunerative work and as a consequence Mr Vella did not qualify for the special rate of pension.
43. Mr Larkin submitted that Mr Vella has a high work ethic; he had shown himself to be flexible in his work in order to secure employment and had previously found work after each job loss. He submitted that Mr Vella could not continue work after his heart incident in 1995. Mr Vella tried fruit picking and some handyman work but found he did not have capacity to continue. Mr Larkin submitted that the evidence of Professor Harper, Dr Kenny, Dr Thomas and Mr Vella’s treating doctor was that Mr Vella does not have a capacity for work as the result of his IHD. He also referred to the evidence of Dr Horsley, who said that Mr Vella was incapable of working more than 8 hours per week as a result of his IHD alone.
44. Addressing the non war-caused factors, Mr Larkin referred to the evidence of Dr Thomas, who dismissed Mr Vella’s back condition as a factor. Mr Larkin also submitted that Dr Horsley’s gave evidence that work restrictions for Mr Vella’s back condition were the same as the restrictions for his ischaemic heart condition. He also said that Dr Horsley’s evidence was that Mr Vella’s fatigue is bound up with his IHD and his anxiety condition. Mr Larkin submitted that Mr Vella’s sleep apnoea and back condition played no part in preventing him from undertaking remunerative work.
45. Mr Larkin referred the Tribunal to the decision of the Federal Court in Cavell v Repatriation Commission (1988) 9 AAR 534 which held that a commonsense approach, with an eye to reality, must be taken when looking at the provisions of section 24 of the Act. Mr Larkin submitted that the only factor preventing Mr Vella from undertaking remunerative work was his IHD. Neither his lumbar spondylosis nor his sleep apnoea prevented Mr Vella from working. Addressing the effect of age upon Mr Vella’s work capacity, Mr Larkin submitted that it was Mr Vella’s evidence that he wanted to continue working until age 70. Age had also not been a factor in Mr Vella obtaining employment in 2004. Addressing the factors of Mr Vella’s education and qualifications, Mr Larkin submitted that Mr Vella has a strong record of being able to adapt and learn new skills.
46. After considering the evidence, the Tribunal is satisfied that Mr Vella’s non war-caused conditions of lumbar spondylosis and sleep apnoea are not factors in preventing him from continuing in remunerative employment. There is no evidence that these conditions have prevented Mr Vella from working. The evidence of Dr Horsley and Dr Thomas is that the back condition may require some restrictions on the tasks Mr Vella can perform but it would not prevent his further employment. The evidence in regard to sleep apnoea is that it has not created a problem in his employment in the past and as the condition is now managed it is not a factor in preventing his continued employment. Mr Vella’s incontinence has also never prevented him from engaging in remunerative work and there was no evidence that it is an actual rather than a perceived factor in preventing him continuing in remunerative employment.
47. Thus, on the medical evidence, Mr Vella’s medical conditions and disabilities for which the Commission did not accept liability do not impact on his capacity for work, either because of the mildness of his symptomotology or because his IHD gave rise to symptomotology before any of the non-accepted conditions had an impact.
48. In considering the other factors submitted by Mr Rudge, namely Mr Vella’s age, time out of work, and employability, the Tribunal noted the evidence of Dr Thomas that Mr Vella was employable despite his age and time out of work because of his special skills. The evidence presented by Mr Vella showed that he had a variety of specialised manual skills, such as wire splicer, specialist machine operator and process worker. In addition, Mr Vella had demonstrated a significant ability to adapt to and master new workplace tasks and environments. He also had experience in the management and supervision of others. The Tribunal is satisfied that, as a result, Mr Vella’s ability to continue in remunerative work is not affected by employability issues.
49. After considering all the evidence the Tribunal is satisfied that the only factor preventing Mr Vella from continuing to undertake remunerative work is his war‑caused IHD. The Tribunal finds accordingly.
Is Mr Vella suffering a Loss of Salary or Earnings?
50. In his statement (Exhibit A1) Mr Vella said that a group certificate from his part-time handyman job indicated that he earned $2,660.00 during the four month period of his employment. That was the last remunerative work he had done.
51. There were no submissions from the parties on the loss of salary or earnings and the issue was not disputed. It is clear to the Tribunal that Mr Vella has suffered a loss of salary, following his cessation of work as a result of his IHD, that he would not otherwise be suffering. The Tribunal finds accordingly.
Are the Provisions of Section 24(1)(c) satisfied?
52. The Tribunal has found that Mr Vella suffers from IHD which is war-caused; and that the war-caused disease alone prevents him from continuing to undertake his remunerative work. The Tribunal has also found that, as a result of his inability to work, Mr Vella is suffering a loss of salary that he would not otherwise be suffering. Accordingly the Tribunal finds that, subject to consideration of the provisions of section 24(2) of the Act, Mr Vella meets the provisions of section 24(1)(c) of the Act.
Section 24(2) of the Act
53. The provisions of section 24(1)(c) are subject to the provisions of section 24(2) of the Act, which states:
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.
54. In this case the Tribunal has found that Mr Vella has not ceased to engage in remunerative work for reasons other than his war-caused incapacity, satisfying the provisions of section 24(2)(a). Section 24(2)(b) does not apply to Mr Vella. Accordingly, the Tribunal finds that section 24(2) does not affect the operation of section 24(1)(c) in this case.
55. As a result the Tribunal finds that Mr Vella satisfies the provisions of section 24 of the Act and is entitled to paid pension at the Special Rate. The date of effect is three months before the application date and is therefore set at 4 January 2007.
DECISION
56. The Tribunal:
·sets aside part of the decision under review and substitutes the decision that Mr Vella’s GAD is war-caused;
·affirms part of the decision under review that Mr Vella’s sleep apnoea is not war-caused; and
·sets aside part of the decision under review and decides that Mr Vella is entitled to be paid a pension at the special rate from 4 January 2007.
I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss A Shanahan, Member and Brigadier C Ermert (Retd), Member,
(sgd). Dianne Eva
Clerk
Dates of Hearing: 2 – 3 June 2009
Date of Decision: 26 June 2009
Counsel for the applicant: Mr Andrew Larkin of Counsel
Solicitor for the applicant: Ms Ursula Noye, of Williams Winter, solicitors
Solicitor for the respondent: Mr K Rudge, Department of Veteran’s Affairs
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