Donald Beale and Repatriation Commission
[2015] AATA 725
•17 September 2015
Beale and Repatriation Commission (Veterans’ entitlements) [2015] AATA 725 (17 September 2015)
Division
VETERANS’ APPEALS DIVISION
File number
2013/3062
Donald Beale
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Dr James Popple, Senior Member
Date 17 September 2015 Place Canberra The decision of the Veterans’ Review Board on 4 April 2013 is set aside and, in substitution, the following decision is made:
The applicant is eligible for the special rate of pension under s 24 of the Veterans’ Entitlements Act 1986, with effect from 24 May 2011. The rate at which he is paid shall be reduced under s 25A of that Act to offset the workers’ compensation payments he received.
.............................[sgd]...........................................
James Popple, Senior Member
Catchwords
VETERANS’ AFFAIRS — Disability pension — special rate of pension — whether injuries were war-caused — whether veteran by reason of war-caused injury alone prevented from undertaking remunerative work — whether veteran ceased to engage in remunerative work for any other reason than war-caused injury — decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988, s 125(1)
Veterans’ Entitlements Act 1986, ss 19(9), 24(1)(c), 24(2)(a), 25A, 120(1), 120(3), 120A(3)
Cases
Beale and Repatriation Commission [2010] AATA 874
Deledio v Repatriation Commission (1997) 47 ALD 261
Magill v Repatriation Commission [2002] FCA 744
Nilant v Macchia (2000) 104 FCR 238
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins (2015) 228 FCR 573
Smith v Repatriation Commission (2014) 220 FCR 452
Summers v Repatriation Commission (2015) 230 FCR 179
Secondary materials
Repatriation Medical Authority, Statement of Principles concerning cervical spondylosis No. 66 of 2014 (20 June 2014)
Reasons for decision
Dr James Popple, Senior Member
17 September 2015
Summary
I set aside the decision of the Veterans’ Review Board (the VRB). The applicant is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work. For that reason, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of that incapacity. Accordingly, he is eligible for the special rate of pension under s 24(1)(c) of the Veterans’ Entitlements Act 1986 (the VE Act). He should be paid the pension at the special rate with effect from 24 May 2011. The Repatriation Commission (the Commission) should calculate his payments having regard to s 25A of the VE Act, so as to offset the workers’ compensation payments he received.
Background
Mr Donald Beale is a veteran. He had operational service in Vietnam from 14 May 1968 to 14 May 1969. He was discharged from the Australian Army in 1970.
On 5 and 26 June 2008, Mr Beale applied for various conditions to be related to his eligible service, and for his pension to be paid at the special rate. On 14 January 2009, the Commission accepted that some of those conditions were related to his service, but decided not to increase his pension to the special rate. On 17 July 2009, the VRB affirmed the Commission’s decision. On 9 November 2010, the Tribunal (in what I will call the Tribunal’s earlier decision) affirmed the VRB’s decision.[1]
[1] Beale and Repatriation Commission [2010] AATA 874 per Ettinger SM and Thorpe M.
On 24 August 2011, Mr Beale applied for further conditions to be related to his eligible service, and for his pension to be paid at the special rate. On 6 July 2012, the Commission accepted that those conditions were related to his service, but decided not to increase his pension to the special rate. On 24 July 2012, Mr Beale applied to the VRB for review of that decision. On 4 April 2013, the VRB affirmed the Commission’s decision.
On 27 June 2013, Mr Beale applied to the Tribunal, under s 175 of the VE Act, for review of that decision.
Decision under review
The decision under review is the VRB’s decision on 4 April 2013 affirming the Commission’s decision on 6 July 2012 not to increase Mr Beale’s pension to the special rate.
Issue
The issue in this review is whether Mr Beale is eligible for the pension at the special rate. That depends on whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work, and (for that reason) suffering a loss of salary, wages or earnings that he would not be suffering if he were free of that incapacity.
Legislative framework
Section 24 of the VE Act provides for the payment of a special rate of pension to a veteran in certain circumstances. The provision specifies a number of requirements, including requirements relating to the veteran’s incapacity from war-caused injury or war-caused disease.
Section 24(1)(c) provides:
24 Special rate of pension
(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 of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity …
Section 24(2)(a) provides:
(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 …
In Smith v Repatriation Commission, Rares J pointed out that “[t]he conditions specified in each of ss 23 and 24 [of the VE Act] are bedevilled with bewildering complexity” and added that the drafting style of the Act “has created a nearly impenetrable shroud over” its meaning.[2]
[2] (2014) 220 FCR 452 at 460 [26]. See also Repatriation Commission v Richmond (2014) 226 FCR 21 at 37 [69] per Middleton, Murphy and Rangiah JJ.
In Summers v Repatriation Commission, the Full Court of the Federal Court explained that “[i]n construing the [VE] Act it is necessary to keep in mind that it is intended to operate beneficially for veterans”.[3] In Repatriation Commission v Richmond, the Full Court said that s 24(1)(c) “is to be construed liberally, and as generously as the language of the section allows”.[4]
[3] (2015) 230FCR179 at 188 [33] per Kenny, Murphy and BeachJJ, citing Deledio v Repatriation Commission (1997) 47 ALD 261 at 262–263 per Heerey J; Repatriation Commission v Richmond (2014) 226FCR21 at 41 [92] per Middleton, Murphy and RangiahJJ.
[4] (2014) 226FCR21 at 41 [92] per Middleton, Murphy and RangiahJJ, citing Nilant v Macchia (2000) 104 FCR 238 at 247 [42] per Weinberg J.
The issue in this review is whether Mr Beale meets the requirement in s 24(1)(c). Mr Beale and the Commission agree that Mr Beale meets the other requirements in s 24. If he also meets the requirement in s 24(1)(c), he is eligible for the special rate of pension; if he does not, he is not.
Mr Beale’s service and his life since then
Mr Beale served with the Engineers 1st Field Squadron. He was a “tunnel rat”, described in the Tribunal’s earlier decision as “a very stressful job during the Vietnam war, in which he confronted the enemy”.[5] The Commission has accepted that he suffers from a number of psychological and physical conditions, including post-traumatic stress disorder, alcohol dependence, depressive disorder and cervical spondylosis. The Commission accepts that these conditions are war-caused. The Commission also accepts that Mr Beale suffers a 70% incapacity due to these conditions[6] and, because of that incapacity, he is incapable of undertaking remunerative work for more than eight hours a week.[7] However, the Commission says that it is not his incapacity from these accepted conditions alone that prevents Mr Beale from undertaking remunerative work, and that (even if it were) he should not be taken to be suffering a loss for the purposes of s 24(1)(c) by reason of that incapacity.
[5] Beale and Repatriation Commission [2010] AATA 874 at [1] per Ettinger SM and Thorpe M.
[6] This is the requirement in s 24(1)(a)(i) of the VE Act.
[7] This is the requirement in s 24(1)(b) of the VE Act.
I make the findings set out in [15]–[22] below, on the balance of probabilities. These findings are based on the documents before me, and on statements and evidence given at the hearing by Mr Beale. I note that these findings are consistent with those made in the Tribunal’s earlier decision. Mr Beale’s evidence is generally uncontested, though some of it is uncorroborated. I accept this evidence.
Mr Beale was discharged from the Army in 1970. Soon after returning home, he started having nightmares connected to his service in Vietnam. He still experiences disturbed sleep. He became irritable and quick to anger. He drank to excess. He became dependent on alcohol and prescribed medication.
In 1973, he started working in Canberra for Comcars, driving politicians and other Commonwealth officers. This required him to work long hours, especially when Parliament was sitting. When he started with Comcars, he would drive cars, buses and trucks. When aspects of Comcars’ operations were separated, he drove buses only (from 1977) then cars only (from 1984).
On 3 May 1986, Mr Beale had a car accident while working (the first accident). He had driven someone from Canberra to Sydney airport the previous evening, arriving in the early hours of the morning. Driving back to Canberra later that morning, having not had much sleep, he ran into the back of another car. He injured his head, neck, back, left arm and rib cage.
On 26 June 1986, Mr Beale had another car accident while working (the second accident). The car he was driving was hit by another car. He sustained no new injuries, but jarred his neck and exacerbated the pain he was experiencing.
He received workers’ compensation payments in respect of the first and the second accidents until he turned 65 in September 2011.
On 14 February 1987, Mr Beale had another car accident (the third accident). This time, he was not working when the accident happened. A truck ran into the back of the car he was driving. Mr Beale further aggravated the injury to his neck. In April 1989, he underwent a fusion procedure (a Cloward’s procedure) on his neck, but it did not remove the pain.
Mr Beale was on sick leave for a period then, in December 1990, he was retired from work with Comcars on the basis that he was not able to drive. He has not worked since. He is still taking pain-killers for the pain in his neck and back.
In about 1997, Mr Beale’s two-year-old granddaughter came to live with him and his wife because the girl’s mother (Mr Beale’s daughter) was unable to look after her. The granddaughter died of Huntingdon’s disease, aged 15. Towards the end of her life, she required extensive care, which was provided by Mr Beale and his wife.
Special rate of pension (s 24 of the VE Act)
As noted above, the parties agree that, if Mr Beale meets the requirement in s 24(1)(c) of the VE Act, he is eligible for the pension at the special rate. Section 24(1)(c) has two limbs. As the Full Court explained in Richmond:
The first limb … requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.
The second limb, which is amplified by s 24(2)(a), requires a causal connection between that inability to work and the veteran’s suffering of financial loss. The enquiry under this limb relates to whether the veteran’s financial loss is a result of his or her war-caused incapacity.[8]
[8] Repatriation Commission v Richmond (2014) 226 FCR 21 at 34 [52]–[53] per Middleton, Murphy and Rangiah JJ. The Court noted that the first limb “is capable of being informed by s 24(2)(b)”. Section 24(2)(b) does not apply to this review.
There is some overlap between these two limbs. In Repatriation Commission v Smith, the Court said:
… the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination of the prospects of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine-year-old plumber.[9]
The Court in Richmond described this statement as “expressing a practical rolled-up approach to the operation of both limbs”.[10] I will treat each limb separately below, noting that there is some overlap between them.
[9] (1987) 15 FCR 327 at 337 per Beaumont J, with whom Northrop and Spender JJ agreed.
[10] Repatriation Commission v Richmond (2014) 226 FCR 21 at 37 [69] per Middleton, Murphy and Rangiah JJ.
The first limb: the “alone” element of the test
In Richmond, the Court also said:
The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.[11]
The Court added that, “[w]hile this may be seen as a harsh result, it arises from the plain words of the section.”[12]
[11] Repatriation Commission v Richmond (2014) 226 FCR 21 at 34–35 [57]–[58] per Middleton, Murphy and Rangiah JJ. In Repatriation Commission v Watkins, the Full Court applied Richmond (which it considered to be “correct”) and quoted these paragraphs: (2015) 228 FCR 573 at 580 [40], 584 [61] per Kenny, Barker and Rangiah JJ.
[12] Repatriation Commission v Richmond (2014) 226 FCR 21 at 36 [65] per Middleton, Murphy and Rangiah JJ. See also Repatriation Commission v Watkins (2015) 228FCR573 at 582 [51] per Kenny, Barker and RangiahJJ
Mr Beale says that the “alone” test is satisfied in his case—that he is prevented from continuing to undertake remunerative work by reason of incapacity from his war-caused injuries alone. Mr Beale retired from Comcars in December 1990 because he was not able to drive. He says that the reason he could not drive was his cervical spondylosis. He sustained that injury in the first accident, and it was exacerbated by the second and third accidents. The Commission has accepted that his cervical spondylosis is war-caused: the injury was caused or exacerbated by the accidents, but a cause of each of the accidents was his accepted war-caused psychological conditions. So, Mr Beale says, there is a direct causal link between his accepted war-caused injuries and his retirement on medical grounds. He says it is logically inconsistent for the Commission to accept that his cervical spondylosis is war-caused but not to accept that his incapacity alone prevents him from working.
The Commission points out that there is a distinction between assessing whether an injury is war-caused, and assessing whether an incapacity results from that injury or that incapacity alone prevents a person undertaking remunerative work. The Commission says that the required standard of proof is different for those different assessments.
As noted above,[13] the Commission accepts that Mr Beale suffers from a number of psychological and physical conditions. The Commission also accepts that those conditions are war-caused. In its reasons for its decision on 6 July 2012 (the decision that was affirmed by the reviewable decision of the VRB), the Commission said:
Mr Beale’s contention that his accepted psychiatric conditions contributed to his motor vehicle accident which in turn caused cervical spondylosis is plausible, in the light of the medical evidence on file.
The Statement of Principles states that trauma to the cervical spine is a factor contributing to cervical spondylosis. I am satisfied that Mr Beale meets this factor and I find that it is causally related to his service. I have therefore decided that cervical spondylosis is service related.
[13] See [13] above.
The Commission says that its decision that Mr Beale’s cervical spondylosis is war-caused was made consistently with s 120 of the VE Act. Section 120 relevantly provides:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury … of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) … in respect of the incapacity of a person from injury … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury …
…
… if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury … with the circumstances of the particular service rendered by the person.
…
Section 120A(3) of the VE Act relevantly provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
The Commission says that its decision that Mr Beale’s cervical spondylosis is war-caused was made on the “reasonable hypothesis” basis: his accepted war-caused psychological conditions contributed to the accidents,[14] which caused trauma to his cervical spine, which caused (then exacerbated) his cervical spondylosis—therefore, his cervical spondylosis is war-caused.
[14] In its reasons for its decision on 6 July 2012, the Commission referred to only one accident—presumably the first accident. The Commission accepts that all three accidents caused or exacerbated Mr Beale’s cervical spondylosis.
The Commission says that a different standard of proof applies to the decision under review: that for me to decide that Mr Beale is eligible for the special rate of pension, I must be satisfied that he is eligible on the balance of probabilities. That is true in relation to the application of the “alone” test and the “loss” test. But, because of ss 120(1) and (3), and s 120A(3), of the VE Act, the question whether Mr Beale’s cervical spondylosis is war-caused must be decided on the reasonable hypothesis test—the same basis on which the Commission decided it.
I accept that Mr Beale’s cervical spondylosis is war-caused. I make that finding on the “reasonable hypothesis” basis. I think that the hypothesis set out in [30] above, which connects Mr Beale’s cervical spondylosis with the circumstances of his service, is reasonable. That hypothesis is upheld by the relevant Statement of Principles (s 120A(3)).[15] It follows that I am not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that his cervical spondylosis is war-caused (s 120(3)). Accordingly, I must determine that it is war-caused (s 120(1)).
[15] “[H]aving trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis” is a “factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis … with the circumstances of a person’s relevant service”: Statement of Principles concerning cervical spondylosis No. 66 of 2014, clause 6(g).
I must now apply the first limb of s 24(1)(c) and decide whether Mr Beale’s war-caused injury alone prevented him from continuing to undertake the remunerative work he was engaged in. It is common ground that his cervical spondylosis prevented him from driving for Comcars. The question is: was that the only reason?
The Commission says that a chain of events prevented Mr Beale from continuing to undertake the remunerative work he was engaged in. It says that those events were:
·the three accidents, the first two of which were work-related;
·the treatment he received for the injuries he sustained in those accidents, including the neck fusion procedure;
·the workers’ compensation he was paid in relation to the first and second accidents;
·his periods away from work after each accident; and
·his medical retirement and the workers’ compensation paid to him until he turned 65, 20 years later.
I do not think that the accidents prevented Mr Beale from continuing to undertake the remunerative work he was engaged in, for the purposes of s 24(1)(c). Dr Selwyn Smith, a consultant psychiatrist, reported on 4 March 2014 that “[f]rom Mr Beale’s perspective he ceased work because of symptomatologies related to the motor vehicle accidents he sustained”. At the hearing, Dr Smith said that the motor accidents were significant and caused Mr Beale orthopaedic problems and pain. I have no doubt that, in a general sense, the accidents caused Mr Beale to stop working. But, for the purposes of s 24(1)(c), it was not the accidents that prevented him continuing to drive for Comcars—it was his incapacity following those accidents. And that incapacity was from his war-caused injuries.
Similarly, I do not think that any of the other events listed above prevented Mr Beale from continuing to undertake the remunerative work he was engaged in. It was not the treatment he received, it was his incapacity notwithstanding that treatment. The compensation that he was paid, and the periods of leave, did not prevent him from working. And his medical retirement was not a reason why he could not continue to work—it was the result of his inability to work, due to his incapacity.
The Commission points out that, at the time of the accidents, Mr Beale was diagnosed with a number of conditions including whiplash. He was not diagnosed with cervical spondylosis until later. I do not think that anything turns on this. The Commission accepts that Mr Beale suffered cervical spondylosis in the first accident, and that that condition was exacerbated in the second and third accidents. It also accepts that Mr Beale’s cervical spondylosis is war-caused. It does not matter that the condition was not accepted until after Mr Beale was medically retired. He was prevented from continuing to undertake the remunerative work he was engaged in because of what was later accepted to be his war-caused cervical spondylosis.
The Commission also points out that it accepted Mr Beale’s various conditions on different bases. As noted above,[16] it accepted his cervical spondylosis on the basis that the accidents were contributed to by his accepted war-caused psychological conditions. It accepted his lumbar spondylosis and thoracic spondylosis on the basis of a reasonable hypothesis that he had carried or lifted loads while bearing weight. For that reason, the Commission says, it cannot be assumed that those two conditions were caused by the accidents. I do not think it matters on what basis the various conditions were accepted. All three of these conditions (as well as 12 other conditions) were accepted as being war-caused. His incapacity from his cervical spondylosis prevented him from driving for Comcars. If one or more of his other accepted conditions contributed to his incapacity, that would not mean that Mr Beale fails the “alone” test, because those other conditions are also war-caused.
[16] See [30] above.
The Commission also referred to the effect upon Mr Beale of the death of his granddaughter in 2010.[17] At the hearing, the Commission suggested that this was another reason that prevented him from returning to work. I disagree. There is some evidence before me that Mr Beale was—understandably—badly affected by his granddaughter’s death. Dr Robin O’Toole, an occupational and environmental physician, reported on 22 December 2013 that Mr Beale had told him (12 days earlier) that he had been dependent on alcohol since before the accidents, and that:
… he had a period of “normality” in 1995 after the birth of his granddaughter. This brought him great joy and purpose, however she died in 2010 and Mr Beale stated that he spiralled in a 12 month binge cycle that he has continued, though at a lesser degree, to this day.
But Dr Robin Chase, an occupational physician, had seen Mr Beale on 29 April 2010, before his granddaughter died. At the hearing, Dr Chase said that, in his view, Mr Beale suffered from significant psychological issues prior to the death of his granddaughter, and did not then have any capacity to return to work. The evidence of Drs O’Toole and Chase on this point is not conflicting. Having regard to this evidence, and the requirement to construe the VE Act beneficially for veterans,[18] I make the following finding on the balance of probabilities. Mr Beale was affected by the death of his granddaughter, but that was not—and is not—a reason preventing him from returning to work.
[17] See [22] above.
[18] See [11] above.
In summary, applying the first limb of s 24(1)(c), Mr Beale’s war-caused cervical spondylosis alone prevented him from continuing to undertake the remunerative work he was engaged in.
The second limb: the “loss” element of the test
For s 24 to apply to Mr Beale, he must be, by reason of incapacity from his war-caused injury, suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity. As the Federal Court explained in Magill v Repatriation Commission,
… s 24(2)(a) … explicates the second limb of s 24(1)(c) by emphasising that a veteran will not be able to satisfy that limb if, though suffering a loss of earnings that may be causally related to a war-related injury or disease, there are other reasons that are also causally related to the veteran’s having ceased to engage in work or related to the veteran’s being prevented from engaging in work.[19]
[19] [2002] FCA 744 at [11] per Drummond J.
Noting that there is some overlap between the two limbs of s 24(1)(c),[20] I will consider under this second limb the Commission’s arguments that, if Mr Beale were not suffering from his war-caused incapacity, he would nonetheless be prevented from engaging in remunerative work for two reasons: his age and the time he has spent out of the workforce.[21]
[20] See [24] above.
[21] I note, for example, that the question of a veteran’s age could be considered under the first limb. The Court in Summers v Repatriation Commission, said that “[o]n the basis of the evidence, including Mr Summers’ own evidence that his age was a factor preventing him from engaging in remunerative work, it was open for the Tribunal to conclude that he did not satisfy the alone test in s 24(1)(c)”: (2015) 230 FCR 179 at 225 [184] per Kenny, Murphy and Beach JJ.
Mr Beale is now 68. At the hearing, Dr O’Toole said that Mr Beale’s age is a reason why he cannot work. He said that his age was not a barrier to employment in itself, but there is significant evidence that people of advanced age are less likely to be hired than younger people. Dr O’Toole reported, on 13 February 2014, that, “[i]f Mr Beale had been free from his accepted disabilities, then he could have undergone retraining”. At the hearing, he said that, although older people take longer to learn new tasks, their level of understanding once they have grasped new concepts is no less than that of younger people. Dr O’Toole reported, on 22 December 2013, that Mr Beale could not retrain for a job because he is “unlikely to be able to adequately comprehend and retain any new information that is supplied to him”. At the hearing, Dr O’Toole confirmed that this is due to Mr Beale’s psychological conditions, not his age.
Mr Beale has not worked in almost 25 years. Dr O’Toole identified this long time out of the workforce as a more significant barrier to employment than Mr Beale’s age. In his report on 29 April 2014, Dr Chase agreed with Dr O’Toole that “the longer a person is off work it is less likely that person will return to work”. He continued:
However, being out of work itself would not preclude successful return to work in a fit individual. It would make it harder, because of deskilling, demotivation and deconditioning but that could be overcome by appropriate retraining.
This point is consistent with Dr O’Toole’s evidence about the efficacy of retraining.
There is no evidence before me that, if it were not for his war-caused incapacity, Mr Beale is too old—or has spent too long out of the workforce—to be able to return to work as a driver. In fact, it is implicit in the evidence of Drs O’Toole and Chase that, if not for his incapacity, Mr Beale could return to work as a professional driver. Dr Smith was expressly of that view. Such a return to work would require retraining. Mr Beale is probably not capable of being retrained, but that is due to his psychological conditions. There is no reason to think that, if he were not suffering from war-caused psychological conditions, he would not be able to retrain.
As the Federal Court explained in Repatriation Commission v Smith,[22] the question posed by s 24(1)(c) is one of hypothetical fact. Because of s 19(9) of the VE Act, the assessment period in this review is the period from the day that Mr Beale applied for the special rate of pension (24 August 2011) until now. So, I must consider Mr Beale’s prospects of employment as a healthy, professional driver in his late sixties. Having regard to the evidence of Drs Smith, O’Toole and Chase, and the requirement to construe the VE Act beneficially for veterans,[23] I make the following finding on the balance of probabilities. If Mr Beale were not suffering from his war-caused incapacity, he would not be prevented from engaging in remunerative work because of his age or the time he has spent out of the workforce.
[22] (1987) 15 FCR 327 at 337 per Beaumont J, with whom Northrop and Spender JJ agreed: see [24] above.
[23] See [11] above.
In summary, applying the second limb of s 24(1)(c), Mr Beale is, by reason of incapacity from his war-caused injury, suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity.
Double compensation
Mr Beale received workers’ compensation payments in respect of the first and the second accidents until he turned 65 in September 2011. I can decide that he should be paid the pension at the special rate from a date not more than three months before the date on which he applied for it: that is, not before 24 May 2011.[24] If he is paid the special rate of pension with effect from that date, there will be a period of four months in relation to which he was in receipt of both workers’ compensation and the pension at the special rate.
[24] See ss 20(1), 157(2) and 177(2) of the VE Act.
Obviously, Mr Beale should not be compensated twice in this way. Section 25A of the VE Act provides for the offsetting of certain payments made under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Even if (as is likely) payments were made to Mr Beale under a predecessor of the SRC Act, s 25A still applies.[25] As Mr Beale is entitled to the pension at the special rate, his payments should be calculated having regard to s 25A. This will ensure that there is no double compensation.
[25] Section 125(1) of the SRC Act deems payments made under previous Acts to have been made under the SRC Act.
Conclusion
Mr Beale is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work. For that reason, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of that incapacity. Accordingly, Mr Beale is eligible for the special rate of pension. He should be paid the pension at the special rate with effect from 24 May 2011. The rate at which he is paid should be reduced under s 25A of the VE Act to offset the workers’ compensation payments he received.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ...............................[sgd].........................................
Associate
Dated 17 September 2015
Dates of hearing 21 and 22 July 2015 Date final submissions received 29 July 2015 Counsel for the Applicant Mr Mark Hay Solicitors for the Applicant Glenn Kolomeitz Lawyers Counsel for the Respondent Mr Tim O’Reilly Solicitors for the Respondent Compensation and Review Branch,
Department of Veterans’ Affairs
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