Elton and Repatriation Commission (Veterans' entitlements)

[2022] AATA 2232

Elton and Repatriation Commission (Veterans' entitlements) [2022] AATA 2232 (13 July 2022)

Division:VETERANS' APPEALS DIVISION

File Number:          2018/2530

Re:Peter Elton

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:13 July 2022

Place:Melbourne

The decision under review is varied to reflect that the Applicant is entitled to a pension at the special rate in accordance with law.

...........................[sgd].............................................

Dr Damien Cremean, Senior Member

Catchwords

VETERANS’ AFFAIRS – Veterans’ entitlements – Whether veteran's war-caused incapacity ‘alone prevented’ him from continuing to work – Whether applicant has suffered loss – Entitlement to special rate of pension – decision under review varied

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)

Cases

Counsel v Repatriation Commission [2002] FCAFC 201
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Richmond (2014) 226 FCR 21

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

13 July 2022

INTRODUCTION

1. The Applicant, Mr Peter Elton, seeks review of the decision of the Respondent’s delegate, as affirmed by the Veterans Review Board, to continue his disability pension at 100% of the general rate with effect from 14 July 2015 pursuant to s 22 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).

2. The Applicant argues there should be an increase in his pension to the special rate under s 24 of the Act.

   HEARING

3. At the hearing, the Applicant was represented by Ms C Symons of Counsel and gave affirmed evidence.

4. The Respondent was represented by Ms C Dowsett of Counsel.

5. The Respondent cross examined the Applicant and called Dr Winstanley, orthopaedic surgeon, to give medical evidence.

6. Dr Winstanley was cross examined by the Applicant.

   LEGISLATION

7. Section 13 of the Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a defence-caused or war-caused injury.

8. Section 22 of the Act deals with the general rate of pension and extreme disablement adjustment liable to be paid to a veteran under the Act.

9. So far as material, s 23 of the Act provides:

   Intermediate 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’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; and

   (c)the veteran is, by reason of incapacity from 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 from that incapacity; and

   (d)section 24 or 25 does not apply to the veteran.

   …

10. Section 24 of the Act relevantly provides:

    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.

    …

    BACKGROUND

11. The Applicant is aged 69 years and turning 70 years on 13 September 2022.

12. He served in the Royal Australian Navy between 7 July 1968 and 21 January 1972.

13. The Applicant suffers a number of conditions including chronic obstructive airways disease, sensorineural hearing loss, ischaemic heart disease, diabetes mellitus, major depressive disorder, hypertension, and malignant neoplasm of the prostate.

14. The Commonwealth has accepted liability under s 13 of the Act in respect of numerous of the Applicant’s conditions, including malignant neoplasm of the prostate, ischaemic heart disease and major depressive disorder. Accordingly, he is in receipt of a pension at the extreme disablement adjustment level as provided for by s 22 of the Act.

15. The Applicant lodged an application for increase of pension on 14 October 2015, at a time when he was still under 65 years of age.

    ISSUES AND CONTENTIONS

16. The Applicant contends that the decision under review should be varied to reflect an entitlement on his part to the special rate under s 24 of the Act.

17. He contends that he satisfies the requirements of s 24 – in particular, each of ss 24(1)(a), (b) and (c).

18. Regarding s 24(1)(b), the Applicant contends that his war-caused conditions have rendered him permanently incapable of undertaking remunerative work.

19. He contends further that he satisfies s 24(1)(c) of the Act, in that he satisfies the so called ‘alone’ test, having regard to authorities in this area

20. The Respondent, however, opposes the application and contends that the Applicant does not meet the criteria in s 24.

21. In particular, the Respondent argues that the Applicant does not satisfy s 24(1)(c) of the Act in that he does not satisfy the ‘alone’ test.

22. Reference is made by the Respondent to various authorities and to evidence in the proceeding including evidence of Dr Winstanley.

23. In the circumstances, it was apparent to me at the hearing that the principal issue in the proceeding is whether or not the Applicant satisfies the ‘alone’ test.

    ANALYSIS

    (i)Sections 24(1)(aa), (aab) and (a)(i)

24. I heard evidence from the Applicant about his previous work history which included work in the real estate industry, communications, as a wine exporter and in radio.

25. I find that the Applicant meets the requirement in ss 24(1)(aa) and (aab) in that he made the required application and had not turned 65 years at the time. See also s 24(2A) of the Act.

26. I find also that the Applicant meets the requirement in s 24(1)(a)(i) in that I accept that his disability from war caused injury or disease is greater than 70% or has been determined to be so by a determination that is in force. See also s 24(2A) of the Act.

27. The serious issue of concern for me is whether the Applicant satisfies the ‘alone’ test in s 24(1)(c) of the Act, which I will discuss shortly.

    (ii)Section 24(1)(b)

28. The Applicant gave evidence at the hearing that he permanently ceased work in around June 2012 due to his heart condition and major depressive disorder. There is no dispute that these conditions are war-caused.

29. I am aware of the relevance of s 28 of the Act in this regard. The Applicant’s vocational experience from 2006 to when he ceased work in 2012 was in the wine export business. Specifically, operating a business through a corporate entity that used a differing business name. The Respondent claims this business name remains registered.

30. I do not consider the provisions of s 28 alter my view in any way although the considerations mentioned in that provision, as I have indicated, I am aware of and have taken into account.

31. The Applicant no doubt also has vocational, trade and professional skills which made him suited to work in the various roles undertaken in the years prior to 2012.

32. Having taken into account those matters, I have regard to the degree to which his accepted conditions have reduced his capacity to undertake the kinds of remunerative work referred to. Having reviewed the evidence, including the report of Dr Moffitt, General Practitioner, dated 1 March 2016, I am satisfied that the Applicant was totally incapacitated, physically and psychologically, from undertaking any remunerated employment aggregating more than 8 hours per week from the time he ceased work in June 2012 onwards. And I am satisfied this is due to his accepted and war-caused conditions.

33. The reference made by the Respondent to the Applicant having a registered business name – whatever its import – does not alter my view. Indeed, the Applicant indicated that it has not been in use since 5 May 2012.

34. Accordingly, I find that the Applicant meets the requirements under s 24(1)(b) of the Act.

    (iii)Section 24(1)(c)

35. I am aware of the authorities on the ‘alone’ test, including all those referred to in the submissions of the parties.

36. A principal authority is Repatriation Commission v Richmond (2014) 226 FCR 21, where at [57] the Full Court said that the alone element in question of s 24(1)(c) requires it to be determined ‘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’. Further, the Court said at [58], ‘[i]f 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’.

37. I am referred also to observations of Branson J in the Full Court in Flentjar v Repatriation Commission (1997) 48 ALD 1. Interestingly, in that case, her Honour (with whom Beaumont and Merkel JJ agreed), in analysing s 24(1)(c) of the Act, asked in the second question she posed, ‘Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?’ but then posed the third question as ‘If the answer to question 2 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?’. It is possible to misread her Honour’s third question, but s 24(1)(c) requires the war-caused injury or war-caused disease to be the only factor preventing the veteran from continuing work.

38. As I see it, I must determine from the evidence whether other non-war caused factors enter the equation in considering whether the Applicant was prevented from engaging in remunerative work. Despite its apparent alleviating effect, I cannot rely upon s 119 of the Act, following observations of Branson J in Flentjar, to have regard only to the substantial merits. This being so, it is a mystery why the Parliament ever enacted s 119 in the first place. It does not seem to have any or the desired effect. Accordingly, s 119 does not enter my analysis.

39. But I do not consider I can say the same of s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), which obliges the Tribunal to pursue the objective of providing a mechanism of review that ‘is fair [and] just…’. The Tribunal fails in its purpose if it does not provide such a mechanism. Nothing was said about this by Branson J because I think it was enacted after she had retired.

40. Each party refers me to various items of evidence contained in the T documents and to the oral evidence given by both the Applicant and Dr Winstanley.

41. None of the medical persons expressing opinions in the T documents were called to give evidence and thus that evidence has not been tested.

42. I can find no rational reason why I should prefer notes of medical persons or even considered opinions (although how ‘considered’, I am unable to find) expressed by them over the evidence given before me in person, except as I specify below. What they have said is not stated on oath or affirmation and, for all I know, the views of those persons when tested in cross examination could now be different.

43. The opportunity existed, presumably, to call one or more of those persons to give such evidence and that opportunity, for one reason or another, has not been taken.

44. In the circumstances, especially considering s 2A of the AAT Act, I consider I should prefer the oral evidence given to me by witnesses who I can see, hear and listen to when being tested. I should prefer such evidence to evidence in writing, in some instances extending back 10 years or so, such as the report of Dr Collier dated 9 November 2012.

45. I very much doubt, but make no finding about it, that Dr Collier, if still alive and well, would recall very much detail about what he assessed nearly 10 years ago in Mr Elton’s case. It is possible that he could, but it would not seem likely given the passage of time.

46. I fail to see how or why I should, for instance, rely on that report or one to similar effect with differing evidence in preference to evidence of the Applicant himself or Dr Winstanley. This applies with equal force to both the Applicant and the Respondent.

47. I add also that some of the documentation sought to be relied on relates to a time before the commencement of the assessment period which began on 14 October 2015.

48. I am prepared to say, however, that I am prepared to give due consideration to medical opinion on file occurring after that date, whether provided by, or on behalf of, the Applicant or the Respondent, if not inconsistent with oral evidence given at the hearing.

49. The evidence of Mr Elton was plainly that he gave up work in about June 2012 and that this was due to his heart condition and major depressive disorder.

50. I do not regard him as being untruthful in saying that, and he was cross examined at length about it. He did not alter his position despite serious challenge.

51. At the same time, he admitted he has and has had other ailments. He could not deny that. But he was firm in the reasons why he gave up remunerative work.

52. As it happens, and at a time after the commencement of the assessment period, Dr Moffitt expresses a view on 1 March 2016 attributing the cessation of Mr Elton’s working life to “multiple war related service conditions”. He also adds in a lumbar spinal condition. As a whole, however, I do not regard Dr Moffitt as expressing a view contrary to the evidence of Mr Elton himself.

53. There is then the evidence of Dr Winstanley. I found him to be a credible witness in his field of expertise in the medical practice of orthopaedics. He is not a trained cardiologist, nor is he a trained psychiatrist. It was not evident to me that he had ever come across Mr Elton until now. Certainly, he was not with Mr Elton in June 2012 when he gave up work.

54. I do not regard the evidence of Dr Winstanley as in any way detracting from that of Mr Elton.

55. He agreed in his evidence and in his report that the Applicant had conditions affecting his spine, right hip, and right knee, but indicated these were not of themselves sufficient to prevent the Applicant from continuing remunerative work. Although, each condition contributes to his incapacity and has done so since the start of the assessment period. There was also reference to the Applicant’s lumbar spine, something mentioned also by Dr Moffitt, but the Applicant either could not recall or did not have a good recollection of this. But he agreed the Applicant’s back condition would restrict his ability, although it did not restrict most of his work.

56. Dr Winstanley, in fact, agreed that the Applicant’s back condition played no part in the Applicant stopping work in June 2012, and that neither his back condition alone nor his knee condition would prevent him from undertaking work in the wine export business.

57. I cannot see how the evidence of Dr Winstanley undermines, in any way, the evidence given by Mr Elton. It could have been different, depending on the opinion he gave, if he was a cardiologist or a psychiatrist but he is neither.

58. As far as I am concerned, Mr Elton in evidence has maintained one consistent version – that he gave up work in June 2012 due to his heart condition and major depressive disorder. He has not departed from that opinion.

59. It seems to me he falls squarely within s 24(1)(c) and satisfies the ‘alone’ test.

60. His heart condition and his major depressive disorder were both accepted as being war-caused on the same date, which incidentally happens to be only a few weeks before he gave up work altogether. In line with Repatriation Commission v Richmond above, the conditions had their “preventative effect” and in my view never ceased through to, and throughout, the assessment period.

61. Other subsequent health conditions did not reduce their preventative effect or operate, on the evidence as I see it, to add a further preventative effect. I think the evidence of Dr Winstanley makes this clear.

62. In all the circumstances, I am satisfied to the required degree that the ‘alone’ test in s 24(1)(c) is satisfied.

63. I am able to make this finding by disregarding s 119 of the Act and putting s 2A of the AAT Act to one side.

64. However, as to the latter, I consider I have observed the requirements in s 2A.

65. I consider also and find that the Applicant satisfies the second limb of s 24(1)(c) of the Act.

66. The Respondent briefly takes the point that there are no financial records showing the Applicant has suffered a loss.

67. I cannot agree with the Respondent in this at all.

68. I consider there is relevant evidence, although it is somewhat vague in its details.

69. Even as a general proposition, someone prevented from working in profitable employment usually will be suffering a loss of income in any event.

70. When he ceased work, Mr Elton was only 59 years of age. Normally someone of his age and particularly of his experience, considering its breadth, could expect to still have a working life ahead of him unless prevented by something.

71. In this case, I have indicated my view that Mr Elton was prevented from work in June 2012, and thereafter, by reason of his war-caused conditions alone: his heart condition and his major depressive disorder.

72. I am satisfied those conditions have resulted in, as one would expect in the case of someone forced to give up work, a loss of income.

73. I have said that the evidence on this point is somewhat vague. But I consider I am reasonably able to find, on the basis of the Applicant’s oral evidence, that the annual salary (by some complex arrangement) which he paid himself of around $18,000 out of the import/export business was lost, together with benefits such as paid accommodation and transport costs while working in Vietnam.

74. The situation would be better if exact financial details were in evidence in writing, but I suspect two factors could be mentioned in that regard: First, Mr Elton was working in Vietnam, and I have no idea what records the government there might have or might require to be kept; and second, Mr Elton gave up work now 10 years ago so recollection in this regard could be deficient.

1. The situation is not ideal, but I consider I am able to make the finding of financial loss brought about solely by the Applicant’s war-caused conditions. This is further based on Mr Elton’s own oral evidence, which I do not disbelieve, and considering the usual course of events which follows from someone ceasing work.

2. I regard this as in accordance with the view of Goldberg J in the Full Court decision of Counsel v Repatriation Commission [2002] FCAFC 201 (to which my attention was drawn after the date of closing submissions) who at [77] in reference to the legislation spoke of a situation where “an income, revenue or cashflow stream available to [a] veteran is lost”.

3. I consider that is the way in which I should view the Applicant’s loss in this case and I do so accordingly.

   CONCLUSION

4. I am satisfied the Applicant should succeed for the reasons I have given.

   DECISION

5. The decision under review should be varied to reflect that the Applicant is entitled to pension at the special rate in accordance with law.

I certify that the preceding 79 (seventy nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.

............................[sgd]............................................

Associate

Dated: 13 July 2022

Date of hearing:	18 May 2022
Date final submissions received:	14 June 2022
Counsel for the Applicant:	Carolyn Symons
Solicitors for the Applicant:	Williams Winter Solicitors
Counsel for the Respondent:	Cathy Dowsett
Solicitors for the Respondent:	Australian Government Solicitor