Dawson and Repatriation Commission
[2003] AATA 1110
•6 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1110
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/180
VETERANS' APPEALS DIVISION ) Re GEORGE DAWSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date6 November 2003
PlaceSydney
Decision The decision under review is affirmed. ...............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - special rate - whether war-caused incapacity alone precludes the Applicant from undertaking remunerative work for more than 8 hours per week - whether genuinely seeking employment - whether accepted disabilities are the substantial cause of failure to obtain remunerative employment - decision affirmed
LEGISLATION
Veterans' Entitlements Act 1986 sections 15, 24, 29, 120
CASELAW
Chambers v Repatriation Commission (1995) 36 ALD 207
REASONS FOR DECISION
6 November 2003 Mr S. Webb, Member 1.This application by George Dawson (“the Applicant”) is for review of the decision of the Repatriation Commission (“the Respondent”) dated 25 March 2002 to continue the Applicant’s Disability Pension at the Intermediate Rate (T2). The decision under review was affirmed by the Veterans’ Review Board (“the VRB”) on 20 January 2003 (T21).
2.The matter was heard on 12 September 2003 in Sydney. At the hearing Ms A. Toliopoulos of the NSW Legal Aid Commission represented the Applicant and Mr N. Bunn of the Repatriation Commission represented the Respondent. The Applicant gave oral evidence. Dr R. Chase and Dr M. Burns gave evidence concurrently. The following materials were taken into evidence and labelled.
exhibit description
T1 – T22Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1Report by Dr M. Burns, Occupational Physician, dated 4 August 2003.
R1Report by Dr R. Chase, Occupational Physician, dated 2 May 2003.
background
3.The following background is provided for information and is not in dispute.
4.The Applicant was born on 16 May 1941.
5.The Applicant served in the Australian Army and has qualifying service from 29 November 1965 to 19 June 1966 and from 7 December 1972 to 20 September 1978.
6.The Applicant has the following accepted disabilities:
L5-S1 Disc damage with discectomy
Haemorrhoids
Bilateral sensorineural hearing loss
Psychoactive substance abuse or dependence
7.The Applicant was granted disability pension at the Intermediate Rate on 11 May 2000 in a consent decision of the Administrative Appeals Tribunal (T11).
8.On 31 August 2001 the Applicant applied for an increase in the rate of disability pension, giving the following reasons for his application (T3, f13):
“Because of my back problems I am having extreme difficulty in driving the car while at work with my alcohol problems and consequently with my haemorrhoids being so bad and causing me a great deal of embarrasment [sic] I have now resigned from work as of 15/08/2001.”
9.The Respondent decided on 25 March 2002 that the Applicant is not eligible for pension at the Special Rate, stating (T2, f8):
“Dr Scott, Mr Dawson’s Local Medical Officer, advises that Mr Dawson is able to work more than 8 hours (and less than 20 hours) in a light duties, low stress job.
I further find that rejected disabilities such as Post traumatic stress disorder and gout, as well as Mr Dawson’s age (turning 61 in May) all contribute to his decreasing work hours.
I am satisfied, however, that the Administrative Appeals Tribunal has made a decision that Mr Dawson is restricted to part-time work and is losing earnings solely as a result of service related incapacity.
Mr Dawson’s disability pension is therefore to be continued at the Intermediate Rate.”
10.The Applicant sought a review of this decision by the VRB. The VRB affirmed the decision under review on 20 January 2003, stating (T21, f106):
“The [VRB] was persuaded by Dr Perla’s report dated 13 November 2002… which clearly states that the veteran could work on restricted hours for more than eight hours per week ‘if not up to 15 to 20 hours per week’.
Thus, the Board is reasonably satisfied that the veteran does not meet the first criterion for entitlement to the special rate of pension. However, from the various reports, Board is also reasonably satisfied that the veteran meets the necessary criterion for continuing entitlement to the Intermediate rate of pension.”
11.Subsequently the Applicant pursued his right of review to this Tribunal.
evidence of the applicant
12.The Applicant told the Tribunal he enlisted in the Army in January 1957 after leaving school. He said he achieved trade qualification as a bricklayer and carpenter in the Army. He informed the Tribunal that he progressed to the level of clerk of works and was responsible for the supervision of construction works prior to his discharge from the Army in September 1978.
13.The Applicant’s evidence was that after leaving the Army he was employed as a supervisor by a kit home company and managed a timber yard in Nowra. He said he was employed in the role of administration manager by a training school briefly before taking a trade store sales position in New Guinea in 1981, where he remained for 5 years. He told the Tribunal that he returned to Australia in 1986 and was employed in a sales position by Monier Steel. Thereafter, he said, he was employed for a short period by AMP Insurance and subsequently by Bernard Construction selling houses.
14.The Applicant’s evidence was that he was last employed by Purlin Supplies as a salesman. He told the Tribunal that “about 5 years ago” he had difficulty coping with the driving involved in this role and negotiated a part-time role, working only with clients with whom he was familiar. He said that he could not cope with this reduced role because he still had difficulty with the amount of driving involved and could not cope with conducting site inspections. The Applicant's evidence was that his back problems prevented him driving for long periods and climbing ladders.
15.The Applicant told the Tribunal that alcohol was “a common denominator in the steel industry”. He said he drank with clients and colleagues, as well as to alleviate the back pain he experienced every day. He acknowledged that his performance suffered and he became intolerant of other sales staff and younger people with whom he dealt.
16.The Applicant told the Tribunal that he left employment in August 2001, stating “he was going to sack me if I didn’t go”.. He said he sought employment from friends and contacts in the steel industry performing desk-based sales duties, but was singularly unsuccessful. He stated that his back and drinking problems were widely known and no one would employ him.
17.The Applicant stated that he has reduced his consumption of alcohol since 2001 on the advice of Dr Sabas. His evidence was that previously, in employment, he would drink two or three schooners of full strength beer in the morning, a further two or three schooners for lunch and would consume a further three or four schooners in the afternoon before having a glass of wine with dinner and some whisky before bed. Currently, he stated, he drinks light beer, consuming two or three schooners at lunch time and four or five schooners in the early evening.
18.The Applicant stated in cross-examination that there were no opportunities at Purlin Supplies for him to perform duties other than those of a salesman. He explained that the business was purchased by One Steel and is now run with two full time sales staff whereas previously he and two others had been employed. He confirmed that his employer was a friend who, in the end, was “happy” to curtail his employment in order to deploy younger staff on a full time basis.
19.The Applicant stated that he “had about three months off” when he left his job at Purlin Supplies and then spent “about twelve months” looking for employment. He said he “kept tabs on the industry” but is not currently “chasing work”. He acknowledged that he has not looked for employment advertised in the press or employment outside the steel industry. He accepted that ‘looking for employment’ was limited to contacting people in the steel industry.
medical evidence
20.The Tribunal had before it a report by Dr R. Chase, Occupational Physician, dated 2 May 2003 (Exhibit R1) and a report by Dr M. Burns, Occupational Physician, dated 4 August 2003 (Exhibit A1). Dr Chase and Dr Burns gave concurrent evidence at the hearing.
21.Dr Chase and Dr Burns agreed that the Applicant is able to engage in employment within restrictions of up to 4 hours per day, five days per week. They concurred that the Applicant’s alcohol consumption is currently a “borderline problem” and that, previously, his higher alcohol intake may have adversely impacted upon his ability to work. Both doctors agreed that the Applicant’s back condition precludes him from unrestricted and full time employment, noting that the Applicant should not lift more than 10 kilograms and should not drive for more than 30 minutes at a time. They concurred that the Applicant’s back symptoms may be managed in employment with “commonsense care” and the use of analgesic and anti-inflammatory medications. Both Dr Chase and Dr Burns agreed that the Applicant’s haemorrhoids and bilateral sensioneural hearing loss are not a significant barrier to employment.
22.Dr Chase and Dr Burns agreed that the Applicant’s back condition and his alcohol consumption may cause the Applicant difficulty obtaining employment.
legislation
23.The relevant legislation in this matter is the Veterans’ Entitlements Act 1986 (“the Act”), especially sections 15, 24, 28 and 120.
24.Section 24 of the Act sets out the matters that are to be had regard to when determining whether a veteran is entitled to the Special Rate of pension.
“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 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; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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
(d) section 25 does not apply to the veteran.
(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
(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.
…”
25.Section 28 of the Act sets out the matters that are to be had regard to when determining whether a veteran is incapacitated from undertaking remunerative work:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
26.Section 120(4) of the Act provides that the standard of proof to be applied in the reassessment of the rate of a pension granted under Part II of the Act is the reasonable satisfaction standard.
submissions, consideration of the issues and findings
27.The issue for determination by this Tribunal is whether the Applicant qualifies for payment of disability pension at the Special Rate pursuant to section 24 of the Act. In order to determine whether the Applicant satisfies the requirements of sections 24(1)(a), (b) and (c) of the Act (as he must if he is to qualify for a pension at the Special Rate) the Tribunal carefully considered all of the evidence, the submissions of the parties the relevant legislation and caselaw.
28.The Tribunal finds that the Applicant satisfies the requirements of section 24(1)(a) of the Act. The 62 year old Applicant applied for an increase in disability pension pursuant to section 15 of the Act and his degree of incapacity pursuant to section 21A of the Act is 100%.
29.The following question arises pursuant to section 24(1)(b) of the Act. Do the Applicant’s war-caused injuries or war-caused diseases, alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week? In order to address this question the Tribunal must have regard to the matters set out in section 28 of the Act. In the case of Chambers v Repatriation Commission (1995) 36 ALD 207 the Full Federal Court commented at paragraph 38:
“The purpose of the inquiry is to ascertain whether the veteran is totally and permanently incapacitated – that is (to use the language of s.24 (1)(b)), whether the veteran’s incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The phrase “remunerative work” is defined in the widest terms, to mean “any remunerative activity”.. Thus the ultimate inquiry to which section 28 is directed is whether the veteran’s war-caused incapacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s.28 specifies the matters – and the only matters – that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran’s war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training and relevant experience.”
30.It was submitted for the Respondent that the medical evidence unambiguously demonstrates that the Applicant is capable of undertaking remunerative work within certain restrictions up to 20 hours per week. Dr Chase and Dr Burns concurred on this point.
31.Considering the matters set out at section 28 of the Act the Tribunal finds the Applicant is a qualified bricklayer and carpenter, with professional skills and experience as a salesman, construction manager and administrator. The kinds of remunerative employment a person with the Applicant’s skills, qualifications and experience might reasonably undertake include employment as a bricklayer or carpenter, as a salesman, or a construction manager or an administrator. It is clear on the evidence, however, that the Applicant’s war-caused back condition reduces his capacity to undertake employment involving physical work such as that required of a bricklayer or a carpenter. The Tribunal is satisfied that the Applicant is precluded from undertaking such physical remunerative work by his war-caused injuries or war-caused diseases alone.
32.There is a question whether the Applicant’s accepted back condition prevents him from undertaking remunerative work that requires him to sit for long periods. The Tribunal is satisfied on the medical evidence that the Applicant’s capacity to work in employment that requires him to be seated for periods of more than 30 minutes is reduced by his accepted disabilities. It follows that his capacity to undertake employment as a travelling salesman or in an office where he is precluded from standing or changing his posture is reduced by his war-caused injuries.
33.The Tribunal is satisfied that the Applicant’s abuse of alcohol and any related dependence reduces but does not extinguish his capacity for remunerative work. The Applicant has reduced his consumption of alcohol and there is no evidence that his mental functioning is impaired.
34.The Tribunal is satisfied that the Applicant’s war-caused injuries, alone, do not prevent him from undertaking remunerative employment at least on a part time basis. The medical evidence is that the Applicant has a residual capacity for remunerative work up to 20 hours per week. Dr Burns stated that (Exhibit R1, p3):
“I believe that [the Applicant] would be capable of working up to 20 hours per week in an office based sales position.”
Dr Chase arrived at a similar conclusion and stated (Exhibit A1, pp 3 and 4):
“[The Applicant] is ideally suited to work in precisely the sorts of jobs he has engaged in all of his working life, namely management, administration and sales.
Are his accepted disabilities sufficient to render him incapable of undertaking such remunerative work for:
-More than eight hours per week or 20 or more hours per week.
[The Applicant] undoubtedly suffers from back pain and I therefore agree that he should not work more than 20 hours per week. I agree however that he could work anywhere between 8 and 20 hours per week in the sort of duties outlined above.”
35.The Tribunal is not persuaded by the Applicant’s submission that he satisfies section 24(1)(b) of the Act, despite having residual capacity to undertake remunerative work. The Applicant contended that no employer would employ a person with his war-caused incapacities. The only matters to be taken into account for the purpose of determining whether the Applicant is capable of undertaking remunerative work are those set out at section 28 of the Act. It is clear that there are matters which otherwise may be relevant, such as those raised by the Applicant in this case relating to the labour market for example, that are to be excluded from consideration for the purposes of section 24(1)(b) of the Act; see Chambers v Repatriation Commission (supra) at par 39.
36.The preponderance of the evidence is that the Applicant is capable of undertaking remunerative work, at least in an office based sales position, for up to 20 hours per week. The Tribunal so finds.
37.This being the case, it cannot be said that the Applicant is totally and permanently incapacitated by his war-caused injuries. The Applicant does not satisfy the requirements of section 24(1)(b) of the Act and does not, therefore, qualify for disability pension at the Special Rate. His application for an increase in disability pension above the Intermediate Rate must fail.
38.It is not necessary for the Tribunal to consider the Applicant’s submissions pertaining to section 24(1)(c) of the Act.
decision
39.The decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: .......................................................................................
AssociateDate/s of Hearing 12 September 2003
Date of Decision 6 November 2003
Solicitor for the Applicant Ms A. Toliopoulos
Solicitor for the Respondent Mr N. Bunn
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