Deloryn and Repatriation Commission

[2006] AATA 622

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 622

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/543

VETERANS' APPEALS DIVISION		)
Re		GERARD DELORYN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date14 July 2006

PlaceBrisbane (Heard in Townsville)

Decision The Tribunal affirms the decision under review.

....................Signed..................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – special rate of pension – incapacity from war-caused injury ‘alone’ did not prevent the veteran from undertaking remunerative work – incapacity not substantial cause of inability to obtain remunerative work – decision under review affirmed

Veterans’ Entitlements Act 1986 s 24(1)(c), s 24(2)(b)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Banovich v Repatriation Commission (1986) 69 ALR 395

Starcevich v Repatriation Commission (1987) 18 FCR 221

Magill v Repatriation Commission [2002] FCA 744

Hall v Repatriation Commission (1994) 33 ALD 454

Conway v Repatriation Commission (2003) 37 AAR 486

REASONS FOR DECISION

14 July 2006  Deputy President P E Hack SC    

Introduction

1.Mr Gerard Deloryn served in the Australian Regular Army between 1964 and 1977. He saw operational service in South Vietnam for a period of about 13 months.

2.On 20 July 2000, when he was aged 59 years, Mr Deloryn applied for a disability pension for incapacity from a variety of war-caused conditions. As a result of earlier hearings the only the issue that remains to be decided is whether Mr Deloryn is entitled to a pension at the special rate, that is, whether he was totally and permanently incapacitated.

Issues

3.Having regard to the various concessions that have been made prior to the hearing two issues fall to be determined. Stated shortly, they are,

· whether Mr Deloryn’s incapacity from war caused ailments alone prevented him from working (the s 24(1)(c) issue) and

· whether the ameliorating provision of s 24(2)(b) apply.

Background

4.Mr Deloryn was born in 1941. For about three years prior to him joining the army in April 1964 he worked as a cook, principally a pastry cook and baker. He appears to have been similarly engaged during his service with the army which concluded in September 1977.

5.Mr Deloryn’s approximate employment history thereafter seems to be,

·   1977 to 1981, process worker at Queensland Nickel;

·   1981-1991, youth worker at Cleveland Youth Centre;

·   1991-1994, taxi driving;

·   1995 (to July), maintenance worker at Magnetic Island Ferries;

·   July to December 1995, taxi driving.

6.Between December 1995 and July 1997 Mr Deloryn was mostly unemployed. He says that during this time he was looking for work. I will return subsequently to examine this aspect of the matter in more detail.

7.Mr Deloryn applied for a service pension in January 1997. That was granted in approximately July 1997 and, according to Mr Deloryn, he,

Effectively stopped applying for positions at about that time because I felt it was no use applying because of the way I felt emotionally.

8.In July 2000 when Mr Deloryn applied for a pension at the special rate he had a number of conditions that were related to war service. The most significant conditions were post traumatic stress disorder and alcohol abuse. He had, as well, but unrelated to his service, old un-united fractures of the right tibia and fibula and chronic hives.

The statutory setting

9.In order to qualify for a pension at the special rate a veteran must satisfy each of the criteria in s 24(1) of the Veterans’ Entitlements Act 1986. The date at which they are to be satisfied is the date of the application, in the present case July 2000.

10.The respondent concedes that all of the criteria of s 24(1) are satisfied except for that set out in paragraph (c). That paragraph provides

(1) This section applies to a veteran if:

…

…

(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 earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity …

11.Guidance in the application of s 24(1)(c) has been provided by the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5. Branson J, with whom Beaumont and Merkel JJ agreed, described the issues as being,

(1) What was the relevant remunerative work that the veteran was undertaking within the meaning of s 24(1)(c) of the Act?

(2) Is the veteran, by reason of war caused injury or war caused disease, or both, prevented from continuing to undertake that work?

(3) If the answer to question two is yes, is the war caused injury or war caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4) If the answer to questions two and three 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?

12.Her Honour went on to say of question four that it threw up for consideration the question of what the veteran would have done if he had none of his service disabilities. And, in approaching that question, I am required to “take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work”: Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47, 54 at [37]. That case identified time out of work before the assessment period, lack of recent work experience and increasing age as being relevant considerations saying,

The decision maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.

13.In considering the first question I am obliged to consider the type of work that Mr Deloryn was undertaking rather than the particular job; the phrase remunerative work that the veteran was undertaking refers to the type of work that the veteran was undertaking or his field of remunerative activity; Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225. In Starcevich at 225 Fox J spoke of the “substantial remunerative work that [the veteran] has undertaken in the past”.

14.Having regard to these considerations it seems to me that the remunerative work in issue here extends to the range of activities that Mr Deloryn performed during his working life – cook, process worker, youth worker, boat maintenance worker and taxi driver. I note that Mr Deloryn obtains a coxswain ticket but that ticket has not been used since 1985 and has long since lapsed.

15.I think question two should be answered favourably to Mr Deloryn.

16.In my view question three must be answered adversely to Mr Deloryn. In January 1997 Mr Deloryn applied for a service pension. He described the injury for which he was claiming invalidity as being a continuous discomfort from the ununited fractures of the right tibia and fibula. He said that that injury stopped him from working because he was “unable to take weight on [right] ankle for unspecified periods of time”.

17.In support of that application he provided a medical report from his local general practitioner Dr Gibney. Dr Gibney said of the ankle condition that Mr Deloryn was unable to stand or walk for more than three quarters of an hour and could not drive cabs because of the need to constantly alight and re-enter the cab. Dr Gibney described Mr Deloryn as unsuitable for all employment because of his inability to stand for any period of time. There was no improvement in Mr Deloryn’s right ankle between January 1997 and July 2000 when Mr Deloryn made the present application.

18.In my view this evidence means that Mr Deloryn’s war caused condition was not the only factor that prevented him from continuing to undertake remunerative work of the type that he had been undertaking. Taxi driving created a problem as has been recorded by Dr Gibney in getting in and out of a taxi cab. Equally the other remunerative work that he had undertaken - cooking, process working, being a youth worker – would all have involved the need for long periods of walking or standing. None of the remunerative work performed by Mr Deloryn was of a sedentary nature, for example clerical work, that would have obviated the need to stand for periods of time in excess of 45 minutes.

19.It follows that in my view s 24(1)(c) is not met.

The section 24(2) issue

20.Section 24(2)(b) is relied upon by Mr Deloryn as having the effect of ameliorating the conclusion that s 24(1)(c) is not satisfied. It is in these terms,

(2) For the purpose of paragraph (1)(c)

(a) …

(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.

21.The effect of this paragraph was described by Drummond J in Magill v Repatriation Commission [2002] FCA 744 at paragraph [8] in these terms,

If…the veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the ‘alone’ criterion in   s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran’s inability to obtain work, provided the veteran nevertheless meets the requirement of s 24(2)(b).

Those requirements were identified by his Honour at paragraph [7] as being,

·   that he or she has been genuinely seeking to engage in remunerative work, and

·   that he or she would, but for a war-caused 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.

22.I accept that a realistic approach must be taken to the efforts made by Mr Deloryn to find employment: Hall v Repatriation Commission (1994) 33 ALD 454,461; Conway v Repatriation Commission (2003) 37 AAR 486 at [9]. In the latter case Dowsett J said, at [8],

As I understand par 24(2)(b), there must be an inquiry as to whether or not the relevant applicant has been genuinely seeking to engage in remunerative work in the past, that is prior to his becoming incapacitated for the purposes of s 24. Then it is necessary to inquire whether or not he would be continuing to seek to engage in remunerative work had he not been incapacitated, and whether the incapacity is the substantial cause of his inability to obtain remunerative work. The “genuinely seeking” test relates to the work history of the applicant rather than to efforts which he might make after he becomes incapacitated.

23.In considering these issues there are a number of features of the evidence which seem to me to be important. The first is that by July 2000 Mr Deloryn had not worked for a number of years. He ceased taxi driving in December 1995 after an incident where he was attacked by a passenger one evening. Thereafter he had a job as a bus driver for two days in 1996 and one days work as a baker in 2000.

24.Mr Deloryn and his wife moved to Taylor’s Beach in 1997 but did not look for work because, he says, “It was apparent that jobs were only given to locals”.

25.I have difficulty, in light of this evidence, in concluding that Mr Deloryn was genuinely seeking to engage in remunerative work. Moreover, Mr Deloryn’s wife gave evidence to the Veterans’ Review Board that he did not exhibit changes in his behaviour and mood until 1999 some years after he ceased work as a taxi driver. As that Board observed that was consistent with the fact that Mr Deloryn did not seek treatment from Dr Likely until 2000 and did not mention any difficulties or symptoms attributable to post traumatic stress disorder in 1997.

26.I do not overlook the medical evidence. Dr Likely who had been treating Mr Deloryn expressed the opinion in a report dated 17 May 2002 that Mr Deloryn was prevented from performing any type of work at the time that he ceased work as a direct result of his symptoms of post traumatic stress disorder. But I must say, with respect to Dr Likely, that his reasons for reaching that conclusion are not demonstrated. The question is really one of fact rather than a matter of medical opinion.

27.It seems to me to be preferable to have regard to the evidence of Mr Deloryn and, in particular, the evidence of what he did and did not do. On that basis I reach the conclusion that Mr Deloryn ceased working as a taxi driver because of the attack on him by a passenger, a circumstance that had nothing to do with his war caused condition, and that at least from 1997, and for reasons entirely unconnected to his war caused incapacity, he stopped seeking to engage in remunerative work.

28.If follows that in my view s 24(2)(b) does not assist Mr Deloryn.

Conclusion

29.The decision of the Commission under review should be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .........Signed..................................................................
  Leisa Pendle, Associate

Date of Hearing  14 June 2006
Date of Decision  14 July 2006
Counsel for the Applicant         Mr D Honchin
Solicitor for the Applicant          Ms M Wallace, Purcell Taylor Lawyers
For the Respondent                  Mr J Stoner, Departmental Advocate