Dickinson and Repatriation Commission

[2008] AATA 615

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 615

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W200702166

GENERAL ADMINISTRATIVE DIVISION		)
Re		TREVOR GEORGE DICKINSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms L R Tovey, Member

Dr D Weerasooriya, Member

Date              14 July 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

…(sgd) Ms L R Tovey..............................

Member

CATCHWORDS

VETERANS' ENTITLEMENTS – whether Applicant qualifies for intermediate rate of pension

Veterans' Entitlements Act 1986 (Cth), ss 23, 28.

Chambers v Repatriation Commission (1995) 55 FCR 9

REASONS FOR DECISION

14 July 2008	Ms LR Tovey, Member
Dr D Weerasooriya, Member

1. This is an application by Mr Trevor George Dickinson for review of a decision of the Veterans' Review Board ("the Board") made on 14 March 2007. The Board decided to affirm a decision of the Repatriation Commission ("the Commission") dated 2 June 2006, that Mr Dickinson was not entitled to pension at the intermediate rate provided for by s. 23 of the Veterans' Entitlement Act 1986 (Cth) ("the Act").

2.      For the reasons which follow, we are of the view that the decisions of the Commission and Board should be affirmed.

3. One of the conditions for eligibility for pension at the intermediate rate, provided for by s. 23(1)(b) of the Act, is that:

"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".

4. Section 23(2) of the Act provides:

"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 full‑time 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."

5. Section 23(2) refers to any work of a kind which the veteran is either undertaking or is capable of undertaking. The Commission submits that Mr Dickinson is capable of undertaking remunerative work of a sedentary nature for periods aggregating more than 20 hours per week and that he does not, therefore, fulfil the requirements of s. 23(1)(b). That submission focuses on the work that Mr Dickinson is capable of undertaking, rather than which he is in fact undertaking.

6.      The primary evidence relied on by the Commission in support of that contention is the report and evidence of Adjunct Professor KC Wan, a consultant occupational physician.  Professor Wan assessed Mr Dickinson on 23 August 2007 and, in his report dated 4 September 2007, concluded that Mr Dickinson was medically fit to perform administrative duties in relation to his vineyard, and other similar sedentary or office work not requiring prolonged standing or walking, such as in radio communications and automotive parts stores.

7.      Mr Dickinson's evidence was that Professor Wan had misunderstood the number of hours which he worked on his farm and the amount of administrative work involved in managing the farm.  We consider that Professor Wan did misunderstand the position when he wrote his report.  In his report, Professor Wan expressed his understanding that Mr Dickinson worked up to 50 hours a week of which the vineyard operations portion took up 16-20 hours.  Mr Dickinson's evidence before us was that it was some years since he had worked 50 hours a week, and that his administrative duties took only about an hour a week to perform.

8.      However, the question in considering the Commission's submission about Mr Dickinson's capacity is not what work he actually performed but what work he was capable of performing and for how long.  A misunderstanding of the work which Mr Dickinson actually performed would be relevant in addressing that submission only so far as it impacted on Professor Wan's view as to Mr Dickinson's capacity for work.  The effect of Professor Wan's evidence before us is that his assessment of Mr Dickinson's work capacity was based on his mobility assessment with regard to Mr Dickinson's knees as a result of his accepted medical conditions of meniscal lesion right knee and osteoarthritis affecting both knees.  It did not depend on his understanding of the amount of administrative work which Mr Dickinson was in fact undertaking.  Professor Wan's evidence, which we accept, is that Mr Dickinson has the capacity, from a medical perspective, to undertake more than 20 hours a week of non-vineyard duties which do not require prolonged standing or walking.

9.      There is no evidence that Mr Dickinson's medical condition has materially changed since the commencement of the relevant assessment period on 2 February 2006, when Mr Dickinson lodged his claim.  We are therefore satisfied that the capacity for work which Professor Wan assessed on 23 August 2007 existed throughout the assessment period.

10.     In reaching that conclusion we have also had regard to two medical reports prepared by Dr Michael Mel, Mr Dickinson's general practitioner, who assessed Mr Dickinson's capacity for work.  Dr Mel indicated in a form that Mr Dickinson's work capacity was restricted for heavy, moderate and light work.  Dr Mel's report involved the use of a Departmental form which did not accommodate any substantial explanation for the view expressed.  He did not give evidence before us, so that the Commission was not able to test, or seek an explanation for, his views.  Further, we would not regard Dr Mel's level of expertise in assessing work capacity as comparable with that of Professor Wan.  For those reasons we would prefer the views expressed by Professor Wan to those of Dr Mel to the extent of any inconsistency.

11. It is then necessary for us to consider whether, medical issues aside, Mr Dickinson would be capable of undertaking other work of a sedentary or administrative nature which does not involve prolonged standing or walking. It is to those matters which we now turn, having regard only to the matters referred to in s. 28 of the Act (as to which, see Chambers v Repatriation Commission (1995) 55 FCR 9).

12.     Mr Dickinson was born on 10 October 1948, and so is now 59 years old.  According to Professor Wan's report Mr Dickinson attended school in Victoria and completed Year 10 and, on leaving school, worked in the motor industry selling spare parts for approximately 3 years.  We infer that this information was provided to Professor Wan by Mr Dickinson and, in the absence of challenge in Mr Dickinson's evidence, is correct.

13.     Mr Dickinson's evidence, which we accept, was that he was in the navy for 20 years from 1967 to 1987, attaining the rank of Chief Petty Officer.  He was a communications officer specialising in Morse code, a form of naval communication which advances in technology have since rendered redundant.  As Chief Petty Officer Mr Dickinson was the head of a department on a ship and responsible for a range of administrative duties such as "marking out watch bills, organising leave and things like that" and dealing with people in his department in a way that made it run efficiently.

14.     Shortly prior to his formal discharge from the navy in October 1987, Mr Dickinson purchased and began farming a property in Boyup Brook.  The effect of Mr Dickinson's evidence, which we again accept, is that he is undertaking work as a farmer, which involves physical labour, supervision of farm workers, making farm management decisions and performing administrative tasks involved in the operation of the farm.  Part of the farm was sold in 1993, but Mr Dickinson and his wife retained some 280 acres of land.  In 1993 they began planting vines, and the farm now has 35 acres of vineyard.  The farm only produces and sells grapes, and Mr Dickinson and his wife do not produce wine.  They also run 300 sheep on the balance of the farm.  Mr Dickinson's work on the farm has included management decisions, such as spraying vines and drenching sheep, and supervising and training employees at times such as pruning season.

15.     In our view, Mr Dickinson's vocational experience both in the navy and on the farm have equipped him with a range of general administrative and managerial or supervisory skills.  He struck us as a capable and intelligent person with the ability to work in a range of situations not involving any special qualifications.  In our view those skills could be adapted to a range of vocations which would not require prolonged standing or walking, including those such as working in radio communications and automotive parts stores suggested by Professor Wan.  He would also, in our view, be able to manage and supervise workers and perform administrative functions in a range of businesses subject only to the qualification that the work did not require special skills or prolonged standing or walking.

16. We did not understand Mr Dickinson's evidence to contest that conclusion. The substance of his response to that submission of the Commission was that "capacity is one thing, opportunity is another". We agree with Mr Dickinson's submission as to the existence of that distinction. The difficulty in that response is that s. 23(2) of the Act is concerned only with the capacity of the veteran to undertake work, rather than the existence of an opportunity for the veteran to exercise that capacity. That reflects the general concern of s. 23 of the Act to confine eligibility to pension at the intermediate rate to circumstances where a war-caused injury or disease, or both, are the only factors preventing the veteran from working. So long as Mr Dickinson has the capacity referred to in s. 23(2) of the Act he will be not be entitled to pension at the intermediate rate, even if other factors operate to prevent him from having any real opportunity to exercise that capacity.

17.     Although there is no direct evidence of this fact, we are prepared to take notice of the fact that persons engaged in sedentary administrative or managerial roles of the kind referred to above would ordinarily work for less than 40 hours per week, excluding overtime.  The question is then whether Mr Dickinson is capable of undertaking that work for 20 hours or more per week.  For the reasons given above, we consider that this question should be answered in the affirmative.

18. It follows that even if he were otherwise qualified (a matter which we need not decide) Mr Dickinson is not entitled to pension at the intermediate rate by reason of s. 23(2) of the Act and the decision of the Board must therefore be affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Dr D Weerasooriya, Member

Signed:                    ...(sgd) T Freeman..........
  Associate

Dates of Hearing:  7 April 2008

Date of Decision  14 July 2008

Representative for the Applicant              In person

Representative for the Respondent         Mr C Ponnuthurai