Daryl Hales and Repatriation Commission
[2014] AATA 850
•13 November 2014
[2014] AATA 850
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4409
Re
Daryl Hales
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 13 November 2014 Place Brisbane The Tribunal sets aside the decision under review and substitutes it with the decision that the applicant is entitled to pension at 100% of the General Rate from 1 January 2010. The application is remitted to the respondent to determine whether the applicant is entitled to the Extreme Disablement Adjustment.
..............................[Sgd]..........................................Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Accepted conditions of Lumbar spondylosis, Bilateral sensorinerual hearing loss, Anxiety disorder, and Tinnitus – Whether eligible for intermediate rate of pension – Decision set aside and substituted – Matter remitted to respondent to determine whether applicant entitled to Extreme Disablement Adjustment.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Veterans Entitlement Act 1986 (Cth), ss 19, 22, 23, 24, 25, 120CASES
Repatriation Commission v Smith (1987) 15 FCR 327SECONDARY MATERIALS
Guide of the Assessment of Rate of Veterans’ Pensions
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
13 November 2014
INTRODUCTION
On 1 April 2010 Mr Daryl Hales (“the applicant”) made a claim for a disability pension for conditions which are attributable to his service in the Australian Army (“the Army”). On 11 November 2011 a delegate of the respondent determined that the applicant should be paid a disability pension at 70% of the general rate with effect from 30 June 2012.
On 4 June 2013 the Veterans’ Review Board (“VRB”) affirmed this decision.
On 30 August 2013 the applicant made an application to this Tribunal for a review of that decision, seeking an earnings-related rate of pension.
BACKGROUND
The applicant in his statements dated 12 February 2013 and 26 February 2014 outlined his employment since the time he was discharged from the Army in 1971. Upon his discharge, he went to the family farm.[1] In 1980 he worked in another farm involving sheep and crops. In 1985 he moved from Western Australia to New South Wales where he continued farming in sheep and crops.
[1] Exhibit A, page 23.
At the end of 1990 he moved to the Gold Coast where he worked for a construction company. He took up a position as a site supervisor and then was promoted to the position of construction manager.[2] In 2009 he resigned from that position and took his long service leave and went caravanning as well as visiting relatives. The applicant then went to the farm where he managed the property with his wife and endeavoured to produce more income by increasing sheep numbers.[3]
[2] Exhibit A, page 63.
[3] Exhibit B, paragraph 13.
From approximately July 2010 until December 2010 the applicant was employed on a short term contract in Bowen.[4] He then returned home to the Gold Coast where he has also done some part-time work for ‘AATV Solutions’ (“AATV”) as well as developing his farm.
[4] Exhibit A, page 63; exhibit B, paragraph 8.
At the end of March 2014 the applicant and his wife orally leased the farm to a neighbour for a year. The last shearing took place at this time and cropping on the property continues.
MEDICAL WITNESSES
Dr Apel
Dr Greg Apel, psychiatrist, was called by the applicant. Dr Apel wrote a report dated
2 July 2014 which was admitted into evidence. Dr Apel some made typographical corrections to his report. The most significant correction to the report concerned the statement that the applicant had a “part-time job” in Bowen in 2010, which was corrected to refer a “full-time” job. Dr Apel stated in his report that he had no prior contact with the applicant prior to interviewing him in May 2014 for the purpose of writing the report which he states is his “purely forensic opinion”.[5]
[5] Exhibit C.
Dr Apel stated that in his opinion the work of the applicant at the Gold Coast was onerous. The applicant experienced chronic financial difficulties. The work that was undertaken by the applicant at Bowen was easier as all buildings were the same; however, he could not cope with this work.
Dr Apel was asked about his opinion in his report that the applicant is precluded for working for more than 20 hours per week because of his “accepted disabilities of anxiety disorder and his chronic back pain”.[6] Dr Apel was also asked to give his opinion as to the current work capacity of the applicant. Dr Apel stated that it would be difficult to give an opinion but he thought that the applicant had a current work capacity of 10-15 hours per week which was “low grade stuff”. Dr Apel confirmed that shingles, which he mentioned in his report, did not have a physiological origin.
[6] Exhibit C, page 8.
LEGISLATION
To be eligible to pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans Entitlement Act 1986 (Cth) (“the Act”) which provides:
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) …
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
(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…
To be eligible for pension at the intermediate rate, the applicant must satisfy the requirements of s 23 of the Act.
Subsections 23(1)(b) and s 23(2) of the Act provide:
Intermediate rate of pension
(1)This section applies to a veteran if:
…
(b) the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently...
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a fulltime basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
Section 19 of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”. For the applicant, this period commenced on 1 April 2010 when the he made his claim and ends when the claim is determined.
I am required by s 120(4) of the Act to determine any issues to my reasonable satisfaction. This provision has been held by the Federal Court of Australia to require that any issues are determined on the balance of probabilities.[7]
[7] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
ACCEPTED CONDITIONS
The applicant’s accepted conditions are Lumbar spondylosis, Bilateral sensorinerual hearing loss, Anxiety disorder, and Tinnitus.
ISSUES
On behalf of the applicant it was conceded that the applicant is not eligible for pension at special rate. This concession was properly made by the applicant in view of the evidence of Dr Apel, who has given his opinion that the applicant has a work capacity of greater than eight hours per week. This has the consequence that the applicant does not satisfy
s 24(1)(b) of the Act.
The applicant has sought the payment of pension at intermediate rate.
There is no issue that the applicant satisfies s 23(1)(aa), (aab), (a)(i) and (d) of the Act. The respondent concedes that the applicant satisfies s 23(1)(b) of the Act. At issue is whether the applicant satisfies s 23(1)(c) of the Act.
CONSIDERATION
Subsection 23(1)(b) of the Act
Prior to the hearing the respondent conceded that the applicant satisfies s 23(1)(b) of the Act. However, when submissions were made the respondent raised the issue of whether the applicant satisfied s 23(1)(b) of the Act. This particular submission was in my view properly raised by the respondent in view of the fact that the applicant stated that he sometimes worked for AATV for up to three days per week. Also, in interpreting
s 23(1)(b) of the Act, it is necessary to have regard to s 23(2) of the Act. That provision defines part-time or intermittent work as work for more than 50 per cent of the time ordinarily worked by somebody in the occupation, or, if that measure is inappropriate, where the veteran is undertaking, or is capable of undertaking, work for 20 or more hours per week. It was not clear on the state of the evidence when the applicant last worked for AATV. The applicant thought that it may have been a year since he last worked for AATV. However, the statement of the applicant dated 26 February 2014 appeared to be drafted on the assumption that the applicant still worked for AATV. I accept the assurance of the applicant that this is not the case. To resolve this issue the applicant with his consent was recalled to give evidence. The applicant stated that when he worked for AATV he did not ever work for more than 20 hours per week.
When the requirements of s 23(1)(b) were discussed at the hearing, I stated that this Tribunal was not, in any event, bound by any concessions made by any party and had to make a decision having regard to the evidence. Having reviewed the specialist medical reports of Dr Christopher Danesi and Dr Apel, I cannot be reasonably satisfied that the applicant satisfies s 23(1)(b) of the Act. Both Dr Danesi and Dr Apel have given reports in which they both have opined that the applicant can work 20 hours per week. In 2012, Dr Danesi has opined that the applicant was “fit for part time work of 20 hours a week”.[8] In May 2014, Dr Apel interviewed the applicant and opined in July 2014 that the applicant was “precluded from working for more than 20 hours per week because of the accepted [conditions]”.[9] It is true that Dr Apel in giving evidence remarked that the applicant could work for no more than 10-15 hours; he also then quite properly conceded that it would be difficult to give an opinion as to the current work capacity of the applicant.
[8] Exhibit A, page 62.
[9] Exhibit C.
My conclusion is that the applicant does not satisfy s 23(1)(b) of the Act, this means that the applicant is not entitled to pension at the intermediate rate. In strictness, it is not necessary for me to discuss the application of the ‘alone’ test in s 23(1)(c) of the Act; however, I set out my conclusion on this issue which was the subject of submissions.
Subsection 23(1)(c) of the Act
Subsection 23(1)(c) of the Act requires me to consider whether 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.
In 2010 the applicant ceased employment with the Gold Coast construction company. The company was engaged in a number of activities including manufacturing as well as building. He was then the construction manager of the company. The applicant gave evidence that his work as a construction manager was stressful in a number of respects. He stated that finance was always a problem with developers not providing money and subsequently subcontractors were not being paid. The applicant also mentioned that he had to assess the weather daily to ascertain if the conditions were suitable to continue work for the day. The applicant informed Dr Apel that his day generally started at
5:00 am when he would check the weather and determine if it was a good day to pour concrete or not. Dr Apel also records that as a construction manager the applicant would work about 50 hours per week and often more from home.After the applicant ceased work with the Gold Coast construction company, he went caravanning in Tasmania, visited relatives and went to his New South Wales farm where he had sheep and crops.
I am unable to make a finding that the accepted conditions of the applicant alone were the reason why he ceased employment with the company in 2009. In his statement of work history dated 12 February 2013 the applicant remarked: “I retired from fulltime work in 2009 because of ongoing anxiety issues, which resulted in the development of shingles”. There was no suggestion in this statement that his accepted orthopaedic condition was a reason why he ceased employment. However, in his more recent statement of 26 February 2014 the applicant now asserts that back spasms are one reason why he had to stop working in February 2009.
In February 2009 the applicant had a shingles condition which was painful. In giving evidence the applicant stated that when he developed the condition he was required to have prompt medical treatment within 72 hours of the occurrence. The applicant no longer has this condition. It is evident from the report of Professor Day that the shingles condition is the reason why the applicant ceased work. On 13 May 2010, Professor Day reported:
Mr Hales developed shingles in his right flank in February 2009 which he believed may have been due to stress. He stopped work in February 2009 and has not worked since.
I make the finding that the applicant ceased work in February 2009 because of his shingles complaint. This finding is made because the applicant left his employment in the month when he developed the condition. The applicant in his statement has remarked, “[s]tress and anxiety eventually brought on shingles in the last few weeks of construction work”.[10] However, I am satisfied that this shingles condition is not related to the anxiety condition of the applicant. This is because Dr Apel has explained that the shingles condition does not have a psychological origin. I have earlier mentioned that the applicant has given differing accounts on the effect of the accepted orthopaedic condition on his decision to cease work in February 2009. I give more weight to this statement of 2013 which does not mention his accepted orthopaedic condition as having any bearing on his decision to cease work. This statement was made closer to the events in question. In any event, the accepted orthopaedic condition did not prevent the applicant from later becoming a site supervisor in Bowen.
[10] Exhibit B, at paragraph 5.
When Professor Day wrote his report on 13 May 2010 he stated that the applicant had “stopped work in February 2009 and has not worked since”.[11] However, soon after that time the applicant was employed by a construction company in Bowen from about
July 2010 until December 2010. The company was undertaking work under the
Building the Education Revolution (“BER”) program.The applicant stated that he was employed as a site supervisor. This work was supervision only with no physical involvement and only sedentary tasks. This work also did not have the complexity of his previous work as a construction manager. This is because the applicant was required to inspect erected buildings which all had the same specifications. The applicant stated that he ceased work on the expiration of the contract. The applicant in his statement remarked that it was “timely that the contract finished when I was required at home to assist my son and family”.[12] There is no suggestion in his statement that he ceased this work by reason of his accepted conditions. I am unable to make the finding that the accepted conditions of the applicant ‘alone’ were the reason why he ceased employment with this company in 2010. In these circumstances I cannot accept the submission that was made on behalf of the applicant that he is entitled to intermediate pension with effect from the day after when that contract to do work under the BER program terminated.
[11] Exhibit A, page 13.
[12] Exhibit B, paragraph 11.
I am required under s 23(1)(c) of the Act to consider the work that was undertaken on the applicant’s own account. Apart from his employment at Bowen, the applicant did work on the farm. The applicant in my opinion was honest in stating that his work on the farm involved not just sedentary duties of administration but also physical tasks such as pulling sheep out of dams and waterholes, and checking fences.
On the state of the evidence I am therefore unable to make a finding that the applicant satisfies s 23(1)(c) of the Act.
CONCLUSION
At the hearing the respondent had quite properly accepted that there is a need to reassess the capacity of the applicant. The respondent now accepts that the applicant meets the requirements for the payment of pension at 100% of the general rate with effect from
1 January 2010. A recent assessment[13] has been made that an impairment rating of 50 combines with a lifestyle rating of five to give a degree of impairment of 100%. This assessment has been admitted into evidence without objection.
[13] Exhibit G.
I consider that this assessment is fair and should be accepted as evidence of the capacity of the applicant. In my view the applicant is entitled to pension at 100% of the
general rate with effect from 1 January 2010, which is the agreed date of effect.
My finding that the applicant is entitled to pension at 100% of the general rate is, however, not the end of the matter. I am required to consider the application in accordance with ss 19 (5A), (5B) and (5C) (see ss 19(3)(b) and ss 19(4A)) and to determine the application under ss 19 (5D) (see ss 19(1)(c) and ss 19(3)(b)). Having regard to the circumstances of this case, I have to consider the entitlement of the applicant under s 22 of the Act.[14] I am required to consider the entitlement of the applicant to a benefit even though such a benefit has not been claimed by the applicant. I also have to consider the entitlement of the applicant through the whole of the assessment period.
[14] See ss 19(5B) of the Act.
The recent assessment of the respondent, which was filed after the hearing, only refers to the psychiatric conditions of the applicant. The applicant has other accepted conditions which are not the subject of the recent assessment. It may well be the case that after an assessment of all of the accepted conditions of the applicant is made, it may be decided that the applicant is entitled to the Extreme Disablement Adjustment. The applicant satisfies ss 22(4)(a)(i) of the Act as he is entitled to pension at 100% of the general rate. The applicant is now of an age that he satisfies ss 22(4)(b) of the Act. The applicant satisfies ss 22(4)(d) of the Act as he is not entitled to a pension under s 23 of the Act, the applicant quite probably accepts that he is not entitled to a pension under s 24 of the Act, and the evidence does not support any entitlement of the applicant to a pension under
s 25 of the Act. The applicant will be entitled to the Extreme Disablement Adjustment if he satisfies ss 22(4)(c) of the Act which requires the applicant to have an impairment rating of at least 70 points and a lifestyle rating of six points as determined under the approved Guide of the Assessment of Rate of Veterans’ Pensions.
I have decided that the most “economical”[15] course of action is for this application to be remitted to the respondent to determine whether the applicant is entitled to the
Extreme Disablement Adjustment: this would necessitate an up-to-date assessment of all of the accepted conditions of the applicant. This course of action would also enable the applicant to make submissions to the respondent on the issue of whether the applicant satisfies ss 22(4)(c) of the Act. If it is determined that the applicant is entitled to the Extreme Disablement Adjustment then that benefit is payable from when the applicant satisfies ss 22(4)(b) of the Act.
[15] Administrative Appeals Tribunal Act 1975 (Cth), s 2A.
DECISION
The Tribunal sets aside the decision under review and substitutes it with the decision that the applicant is entitled to pension at 100% of the General Rate from 1 January 2010. The application is remitted to the respondent to determine whether the applicant is entitled to the Extreme Disablement Adjustment.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ................................[Sgd]........................................
Associate
Dated 13 November 2014
Date of hearing 29 September 2014 Date final submissions received 1 October 2014 Solicitors for the Applicant Matt Black, KCI Lawyers Solicitors for the Respondent Adrian Crowe, Department of Veterans' Affairs
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