Dunkley and Repatriation Commission - [2001] AATA 733

DECISION AND REASONS FOR DECISION [2001] AATA 733

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/248

VETERANS APPEALS DIVISION        )
           Re      COLIN DUNKLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date3 August 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that the applicant is not entitled to loss of earnings allowance beyond 5 July 1999.
  .........Sgd. Mr J. Handley ...............
  Senior Member
CATCHWORDS
Veterans' Entitlements - loss of earnings allowance - S.108; applicant self employed - ceased employment - claimed allowance - whether 'engaged' in an occupation - decision set aside.
Veteran's Entitlements Act 1986 s.108
Re Beh and Repatriation Commission 1994 35 ALD at 138
Re Hoyne and Repatriation Commission 1997 47 ALD 708

REASONS FOR DECISION

3 August 2001 Mr J. Handley, Senior Member

The applicant applies to review a decision of the respondent made on 4 December 2000. The application concerned a claim made by Mr Dunkley for loss of earnings allowance pursuant to s.108 of the Veteran's Entitlements Act 1986 ("the Act"). It is not an application where review is required by the Veteran's Review Board ("the VRB") before the jurisdiction of this Tribunal is enlivened.
The application was heard in Mildura on 17 July. Mr Dunkley appeared without representation. The Commission was represented by Mr Douglass.
The primary decision was made by the respondent on 29 September 2000. It granted loss of earnings allowance for a number of defined days between August 1999 and August 2000, being days upon which the applicant attended his Doctor for treatment.
The respondent's delegate in a reviewable decision of 4 December 2000 set aside the primary decision of 29 September 2000 and decided that the applicant was entitled to loss of earnings allowance for the period 3 August 1999 to 30 August 1999 only.
A number of claims have been made on the respondent for pensions and benefits under the Act. Those applications have concerned service pension, disability pension, special rate pension and the current application for loss of earning allowance.
The claims to date may be summarised as follows-
Disability Pension

On 16 June 1999 the applicant claimed disability pension for post traumatic stress disorder and a number of other illnesses and injuries.
On 21 August 1999 the respondent accepted some of the applicant's claimed conditions and rejected others. Pension was assessed at 90% of the general rate with effect from 16 March 1999 (three months earlier than the date of the primary claim).
On 31 August 1999 the applicant lodged an appeal to the VRB against the above decision.
On 17 March 2000 the respondent completed a S.31 review and accepted conditions, which were previously rejected. It decided to increase pension to the intermediate rate with effect from 16 March 1999, on the basis that the veteran then was capable of working but for periods not exceeding 20 hours per week.
On 4 April 2000 the appeal lodged with the VRB was withdrawn.
Special Rate Pension
On 16 October 2000 the applicant applied for an increase in the rate of pension that was then being received. At that time the applicant was in receipt of intermediate rate pension.
On 23 November 2000 the respondent accepted this application and granted special rate pension with effect from 16 October 2000.
Service Pension
On 30 August 1999 the applicant claimed service pension.
On 18 October 1999 the respondent accepted the application and granted it with effect from 30 August 1999.
Loss of Earnings Allowance
This is the application currently under review. It was lodged with the respondent on 15 June 2000 (T-3 & T-8).
The Legislation

Relevantly, section 108(1) & (2), of the Veteran's Entitlements Act provide as follows-
"(1) The Commission may grant an allowance, called loss of earnings allowance, to a person in accordance with the provisions of this section.
(2) Loss of earnings allowance may be granted to a veteran, in respect of any loss of salary or wages, or loss of earnings on his or her own account from an occupation in which he or she is engaged, suffered by reason of:
(a) the veteran's undergoing treatment for incapacity from a war-caused injury or a war-caused disease;
(b) the veteran's having to wait for the supply of, or repairs to, an artificial replacement or other surgical aid or appliance necessitated by such an incapacity;
(c) an investigation of a claim or application made by the veteran under Part II or of a pension granted to the veteran under that Part; or
(d) the veteran's undergoing treatment associated with such an investigation;"

Colin Charles Dunkley

Mr Dunkley was at all relevant times self employed as a contractor engaged in earth moving, clearing and levelling of grape blocks and rural properties. He is presently 55 years of age having been born on 15 July 1946. Mr Dunkley was engaged in service in Vietnam and has a number of accepted war-caused disabilities the most significant being post traumatic stress disorder.
Although Mr Dunkley ceased self employment 5 July 1999 he had been under the care of Doctor Caracatsanis, a consultant psychiatrist in Mildura from 29 March 1999. He continued to work but noticed that his health was deteriorating.
On 3 May 1999 Doctor Caracatsanis commenced to prescribe 200 mg of Zoloft, an anti depressant/anti anxiety medication. That dosage was increased to 250 mg on 18 June 1999 and was again increased to 300 mg per day from 3 August 1999.
Mr Dunkley said that he ceased work because he was unable to accept responsibility for consequences of erratic driving of earthmoving equipment whilst he was under the effects of the Zoloft medication. He also made enquiry of his public liability insurer with respect to the influence upon him of the medication and was told liability would no longer be accepted.
Submissions
Mr Douglass submitted that whilst the applicant may have an entitlement to loss of earnings allowance for periods prior to 5 July 1999, such an entitlement, if any, was not within the power presently of the Tribunal because no claim had ever been made for it. That is to say the applicant's claim of June 2000 claimed loss of earnings allowance from 5 July 1999, being the last day that he worked. Mr Douglass noted that the applicant provided dates for treatment with Doctor Caracatsanis prior to 5 July 1999 (which were not apparent from the T-documents). He conceded that the provisions of s.108 did not entitle a veteran to loss of earnings allowance only on those days where treatment was undertaken. He accepted that a broader interpretation should be made of the section. The concession made by Mr Douglass is appropriate and is consistent with the interpretation made upon the section by Deputy President Breen in Re Beh and Repatriation Commission 1994 35 ALD at 138.
Nonetheless Mr Douglass submitted that the applicant had no entitlement at all to loss of earnings allowance with respect to the present application. He referred to the words "is engaged" as they appear in s.108(2) and argued that from 5 July 1999 the applicant was not "engaged". It followed that by reason of the applicant having ceased employment at that date and therefore no longer being "engaged" he could not qualify for loss of earnings allowance.
Mr Dunkley took issue with the respondent only assessing his entitlement to loss of earning allowance from 5 July 1999 because he had been attending his treating psychiatrist for many months prior to that date. This submission was made upon the basis that the respondent - prior to the hearing - had assessed entitlement to loss of earning allowance upon a report that it had received from the treating psychiatrist which identified the dates of treatment after 5 July 1999. Mr Dunkley asserted that he had an entitlement to a loss of earning allowance before 5 July 1999 based on the evidence that he had obtained of his attendances upon his psychiatrist for treatment prior to that date.
Conclusion & Reasons For Decision
Section 108 of the Act has been infrequently considered by this Tribunal and there are few reported decisions. I expressed my curiosity to the parties at the hearing by the language of the section particularly the presence of the words "is engaged". The word "is" suggests that the veteran remained "engaged" at the time that the loss of earnings allowance is "granted".
In most welfare legislation giving compensation or pension type entitlements to persons who have lost or who are losing income by reason of illness or injury, the entitlement to compensation or pension is described as flowing from an "incapacity". It is rarely in my experience dependent on a person continuing to have an existing contract of employment (in the case of wage and salary earners) or a continuing self-employment. The word "engaged" so far as I can determine from the context of the section suggests a continuing or existing contract of employment or self employment, that is, the veteran remains "engaged" in that employment. The presence of the words "an occupation" would suggest that interpretation.
Another reason why this section is unique in the context of welfare legislation for injured employees who have suffered an incapacity, is the manner in which the allowance is calculated and the fact that the loss is compensated by a payment described as an "allowance" for loss of earnings as opposed to a payment of compensation or pension in a defined amount. The "allowance" if payable is determined by (sub-section 8).
Having regard to the language used and what is intended to be achieved by this section, I am satisfied that resort to extrinsic materials is not warranted as an aid to interpretation. I am satisfied that the section provides for a payment of an allowance to a veteran who suffers a loss of salary or wages from an occupation in which he is engaged. It follows that any entitlement only exists whilst the veteran "is engaged". Therefore if a veteran has ceased employment (in the case of self-employed persons), or has had employment terminated (in the case of wage and salary earners), the veteran cannot be said to be "engaged". Consequently, Mr Dunkley did not have an entitlement to loss of earnings allowance from 5 July 1999 because from that date he was not "engaged". In his evidence he said that from that date he decided that he could no longer continue with self employment by reason of the effects of the medication, the inability to obtain indemnity from his insurer and having then commenced a process of selling or disposing of his earth moving machinery. I am satisfied in the context of this application that from 5 July 1999 Mr Dunkley did as a fact determine that his self employment had ceased and he therefore was no longer "engaged".
These findings are consistent with a decision of the Tribunal in Re Hoyne and Repatriation Commission 1997 47 ALD 708, where the Tribunal determined that loss of earnings allowance was payable to a veteran but having heard evidence from the veterans' employer that the employment was terminated on a certain date, the allowance was not payable from that date. The Tribunal decided that from the date of termination the veteran was no longer "engaged". I agree with that analysis and am of the view that it is consistent with the intention and apparent policy of the Parliament in the drafting of this section to compensate veterans by payment of an allowance for loss of earnings only during the period of time that they remain "engaged".
There are other provisions within the Act, which permit a payment of pension or benefit in the case of incapacity by war-caused injury. Mr Dunkley may or may not have rights elsewhere. His rights however to recover an allowance for loss of earnings under this section ended at 5 July 1999 when he ceased to be "engaged".
In the circumstances the decision under review must be set aside and in substitution it is decided that any entitlement to loss of earnings allowance ceased at 5 July 1999.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ..C. Irons ......................................
  Secretary
Date/s of Hearing  17 July 2001
Date of Decision  3 August 2001
Counsel for the Applicant        unrepresented
Solicitor for the Applicant
Counsel for the Respondent    Mr R. Douglas, Departmental Representative
Solicitor for the Respondent