ELY and REPATRIATION COMMISSION
[2011] AATA 572
•19 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 572
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4424
VETERANS' APPEALS DIVISION ) Re ROBERT STANLEY ELY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date19 August 2011
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Rate of disability pension – Special rate – Whether veteran ceased work for reasons other than war caused incapacity – Other reasons contributed to veteran’s cessation of work – Alone test not satisfied – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 24, 19(9)
REASONS FOR DECISION
19 August 2011 Senior Member K Bean introduction
1. The applicant, Mr Ely, served in the Royal Australian Navy (the Navy) between 4 December 1964 and 3 December 1973. His eligible war service included seven voyages to Vietnam. Following his discharge from the Navy, he commenced employment with the Power and Water Authority (the Authority) of the Northern Territory, in Alice Springs in January 1974. He worked for the Authority in different capacities until April 1997, when his employment finished as a result of him accepting a voluntary redundancy package. At the time he left his employment with the Authority he was employed as an Aboriginal Liaison Officer. Although at the time he left his employment with the Authority he expected to obtain further work, in the event, he has not undertaken paid employment since then.
2. It has been accepted that, as a result of his service, he suffers from the conditions of chronic bronchitis, emphysema, lumbar spondylosis and asbestosis, and on 26 February 2010, the Repatriation Commission (the Commission) decided that he was entitled to a disability pension at 100 percent of the general rate[1]. However Mr Ely sought review of that decision by the Veterans’ Review Board (VRB) contending that he should be paid pension at the special rate. On 7 September 2010 the VRB decided to affirm the decision of the Commission[2] as the VRB was not satisfied that Mr Ely qualified for payment of pension at the special rate.
[1] T13/56
[2] T15/58
3. On 14 October 2010, Mr Ely applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
legislation and issues
4. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Ely must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Ely first lodged his claim on 31 May 2005 and the date of this Tribunal’s decision[3].
[3] Section 19(9), VE Act
5. Section 24 of the VE Act relevantly provides as follows:
“24 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.
(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; and
(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.
…”
6. There was no dispute between the parties that the conditions suffered by Mr Ely and which have been accepted as being war-caused were:
(a) chronic bronchitis;
(b) emphysema;
(c) lumbar spondylosis; and
(d) asbestosis.
7. There was also no dispute between the parties that Mr Ely satisfies ss 24(1)(aa), 24(1)(aab), 24(1)(a), 24(1)(b) and 24(1)(d) and I am satisfied that he satisfies those provisions. However, the respondent contends that he does not satisfy the “alone” test prescribed by s 24(1)(c).
8. It follows that the issue for my determination is:
(a)whether Mr Ely satisfies the “alone test” provided for in s 24(1)(c) of the VE Act.
the evidence
9. By far the most relevant evidence before me is that of Mr Ely himself and in addition to providing a statement, Mr Ely also gave oral evidence at the hearing. In the course of his oral evidence, he said that he decided to accept a voluntary redundancy from the Authority because of the problems he was having with his “back and lungs”. He explained that he had started to become quite concerned about travelling to remote communities, because of the possibility that he may need medical assistance. In his statement he said as follows in relation to this issue:
“…
For the last eighteen months/two years I started to suffer more with my long standing back problems and my breathing problems in fact on several occasions whilst driving and being many kilometres from base or even a community I felt light headed and faint and seemed to be struggling for breath which scared me. However I put it down to the poor state of my lungs dust and heat. In the back of my mind however I suspected that my lung problem was a little more serious than just suffering dust inhalation but I was afraid to see a doctor at that time because my fears may be confirmed (which they were at a later date as per my medical documents submitted confirm). I kept my fears to myself until approx. late October or early November 1996 when a general redundancy offer was made to all employees of the Authority. I saw this as a way to leave the Authority before my health problems became apparent to management and possibly loose [sic] my employment. That is what was going through my mind so I applied for the redundancy offered whereby I could nominate the actual termination date. The date on which I planned on terminating was April 26 1997 which gave me sufficient time to look around for some other employment that I considered I could reasonably carry out. …” [4]
[4] Exhibit 3
10. Whilst Mr Ely acknowledged that his mother died at Christmas time in 1996 and that after he left the Authority he moved to Queensland to be with his father, he also said that this was not a factor in his decision to accept the redundancy.
11. In his statement, Mr Ely said in relation to this issue:
“… Unfortunately on December 25th 1996 my mother died suddenly. I managed to get a flight over to Queensland on December 26 1996 so that I could assist my father with funeral arrangements. It is just as well I did because my father was very upset and taking his loss very badly. I told my father that I had taken a redundancy and that I would be finishing up in April 1997 and if he wanted I could move to Queensland to find employment so that I could be close if he needed me which consoled him a little. I also explained to him that I would not be able to get back to Queensland until after April 1997. I stayed with him for three weeks following the funeral. On return to Alice Springs I started to make preparations for leaving whilst waiting for my termination date to arrive. After terminating my employment I continued to finalise my affairs in Alice Springs which included registering with Centrelink and departed for Queensland in early July 1997. …”[5]
[5] Exhibit 3
12. Mr Ely’s oral evidence was consistent with his statement, and he confirmed in his oral evidence that he had formed the intention to move to Queensland at or around the time of his mother’s funeral. He confirmed that at the funeral he told his father that he had applied for a redundancy package and as his father wanted him to move to Queensland, he ultimately formed the intention to do this, moving to Queensland in July 1997.
13. As to what occurred subsequently, Mr Ely explained in his statement and in his oral evidence that after he had moved to Queensland, it became apparent that his father required more care than he had previously realised and this resulted in him applying for a full-time Carer Payment from Centrelink which was granted. His father subsequently expressed a desire to return to Adelaide and Mr Ely and his wife travelled to Adelaide in late May 1998 and purchased a house. Unfortunately, when they returned to Queensland with a view to helping him move to Adelaide, his father died quite suddenly in June 1998. In late 1998, Mr Ely and his wife returned to Adelaide and Mr Ely said that he “started to look around for work but to no avail”[6]. He also mentioned that whilst he was in Queensland he had applied for work that he thought he could do, including applying to work at Mitre 10, but had been unsuccessful. Following his return to Adelaide, Mr Ely said he sought work at one stage with a real estate agent, but was told he was not suitable which he believed was related to him being on Disability Support Pension at that time. He said he had been put on Disability Support Pension in October 1998. He said his last attempt to gain employment had been when he attempted work at a barber’s shop in August 2006 as a cleaner and general handyman, on an unpaid basis. However, he explained that he could not cope with this work[7].
[6] Exhibit 3
[7] T18/75
14. In the course of cross-examining Mr Ely, Mr Crowe, who appeared as advocate for the respondent, directed attention to evidence Mr Ely had given to the VRB which appeared to be inconsistent with some of his evidence in this matter. Mr Crowe pointed out that in his evidence to the Veterans’ Review Board (VRB), Mr Ely had said the following in relation to his decision to accept the redundancy:
“And for me, because me – well, both me parents, actually, me mother and father were both very, very bad at that stage and I was – I was worried about them and they were in Queensland and, ‘Where can I get over there and look after them?’ and then – and then, money as well. But then there – this redundancy thing come up, so I jumped at that, sort of, well, that’ll tide me over while I look for work over there and looking after them at the same time. But then me mother died on Christmas Day of that year before I got there.”[8]
[8] Exhibit 4
15. When Mr Crowe questioned Mr Ely about this earlier evidence, Mr Ely said that he had been confused at the VRB hearing. He acknowledged that prior to his mother’s death, he had been worried about his parents, but said he had explained his situation poorly at the VRB hearing and become “mixed up”. He said he did not take the redundancy with the intention of going to Queensland, but rather had been intending to take a holiday on the proceeds of the redundancy. As to whether his parents’ situation had made any contribution to his decision to take the redundancy, he said that it had played “no part at all”.
16. In relation to the availability of the package, Mr Ely acknowledged that this had made it possible for him to give up work. He said that if a package had not been available, he would have stayed on as long as he could until he was “forced out”. He also confirmed that having indicated he would take the redundancy before Christmas 1996, he was able to continue working as normal up until April 1997.
17. Under cross-examination, Mr Ely also confirmed that he had made a number of attempts to obtain work in Queensland, although he had no records of this. He said that his job seeking efforts had included looking in the papers, ringing people up, sending in applications and going to see people. He specifically recalled receiving a phone call in relation to a storeman’s position, but said he was not successful in obtaining that position. When he was asked as to the last time he sought work apart from at the barber’s shop in 2006 he said this was “a long time ago”. He agreed that apart from his approach to the barber shop, he had not sought work since 2005.
18. Mr Ely also agreed that, as reflected in the medical evidence, he had problems with his shoulders from time to time and that his shoulders would sometimes hurt with overhead work. He did not disagree with the assessment of Dr Long in October 1999 that at that time he had some limitation of his capacity to lift and carry weights due to his shoulder problems[9].
[9] Exhibit 5
consideration
19. In considering whether Mr Ely satisfies the requirements of s 24 in light of the evidence, there are a number of distinct questions which potentially need to be addressed. In this matter, I consider that the separate elements of s 24 which potentially need to be specifically addressed can be described as follows:
(a) What was the “remunerative work” that Mr Ely was undertaking?
(b) Did Mr Ely cease to engage in remunerative work for reasons other than his war-caused incapacity within the meaning of s 24(2)(a)(i)?
(c) If not, during the assessment period was he prevented by his war caused incapacity alone from continuing to undertake the remunerative work he was undertaking? and
(d) Has he been genuinely seeking to engage in remunerative work but unable to engage in such remunerative work by reason of his war caused incapacity within the meaning of s 24(2)(b)?
What was the ‘remunerative work” Mr Ely was undertaking?
20. The first question for me to address in the context of considering whether Mr Ely satisfies the requirements of s 24 is that of the “remunerative work” Mr Ely was undertaking for the purposes of the provision[10].
[10] See Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5
21. As noted above, Mr Ely was employed by the Authority in Alice Springs between 1974 and 1997. He also indicated in his statement that in the course of that employment he worked as a maintenance control officer until he became the supervisor in the Rural Operations Division in approximately 1990. About two years later he became the Aboriginal Liaison Officer, often travelling over large distances in order to carry out the duties of that role.
22. The parties accordingly agreed that the remunerative work which Mr Ely was undertaking was that which he had undertaken for the Authority, namely clerical, administrative and liaison work, often involving travelling long distances. I am satisfied that that is an appropriate characterisation of the remunerative work that Mr Ely was undertaking.
Did Mr Ely cease to engage in remunerative work for reasons other than his war caused incapacity?
23. Having regard to the terms of s 24, it is clear that if Mr Ely ceased remunerative work for reasons which included reasons other than his war caused incapacity, he will not satisfy the “loss” test contained within s 24(1)(c), as elaborated by s 24(2)(a)(i).
24. As to the circumstances in which Mr Ely ceased undertaking remunerative work, the parties agreed that Mr Ely ceased remunerative work in April 1997, when he accepted a redundancy package from the Authority, and I am satisfied that he ceased remunerative work at that time.
25. Mr Swan, who appeared as counsel for Mr Ely, also submitted that he ceased work by reason of his accepted disabilities alone and not for any other reason, with the result that s 24(2)(a)(i) was not invoked. In support of that submission, he relied upon Mr Ely’s evidence that he had decided to leave the Authority as he could no longer handle the duties due to his “back and lungs”. He also relied upon Mr Ely’s evidence that a desire to be closer to his parents was not a factor in his decision to accept the redundancy.
26. Having regard to the whole of the evidence however, including Mr Ely’s evidence before the VRB, I am not satisfied that Mr Ely’s accepted disabilities were the only reason for him ceasing remunerative work.
27. There are several reasons for me reaching that conclusion. Firstly, as was highlighted during Mr Crowe’s cross-examination of Mr Ely, it is not apparent on the evidence before me that, at the time he ceased work with the Authority in Alice Springs, Mr Ely was actually unable to continue with that employment by reason of his accepted disabilities. I accept his evidence that he “felt light headed and faint” on “several occasions” prior to his decision to accept the redundancy and that he was “suffering more” as a result of his back problems. However it appears that having decided to take the redundancy package before Christmas 1996, he was able to continue in the same duties until 25 April 1997, his nominated termination date. It is not apparent therefore that Mr Ely was physically unable to continue with those duties at that time, and there is no medical evidence before me to that effect. Rather, it appears to me that, albeit faced with increasing physical difficulties, Mr Ely chose to take advantage of the opportunity to take a redundancy package at a point earlier in time than when he would otherwise have left his employment had the package not been available.
28. In addition, I am satisfied that the situation of Mr Ely’s parents made a significant contribution to his decision to leave his employment when he did. As Mr Ely indicated to the VRB, I consider that his parents’ situation was playing on his mind at that stage and that he was “worried about them” and wondering “when can I got over there and look after them?”[11]. I consider that he tended to downplay the significance of this factor in his evidence before me, and was more frank in his evidence to the VRB.
[11] Exhibit 4, p 5
29. I accordingly consider that, when the opportunity to take a redundancy arose, a number of factors contributed to Mr Ely’s decision to take it. These included his increasing, though not yet disabling, physical difficulties and his concern over his parents in Queensland and desire to be closer to them. In addition, I also consider that the availability of the package itself caused him to leave his employment at an earlier point than he otherwise would have done.
30. As Mr Ely ceased remunerative work when he ceased work with the Authority, it therefore follows that I am not satisfied that he ceased remunerative work only because of his war caused incapacity. Rather I consider that other factors contributed to him ceasing remunerative work when he did. Further it appears to me on the evidence that, given Mr Ely has not worked since he left his employment with the Authority, the reasons for him leaving that employment continue to be operative reasons for him having ceased to engage in remunerative work, and have remained operative throughout the assessment period. That being the case, it also follows that s 24(2)(a)(i) is satisfied as Mr Ely ceased to engage in remunerative work for reasons other than his accepted disabilities. It therefore also follows that Mr Ely does not satisfy the “loss” limb of the s 24(1)(c) test.
31. As Mr Ely therefore cannot satisfy s 24 it is unnecessary for me to address the other issues identified above.
conclusion
32. For the reasons given above, I am reasonably satisfied that Mr Ely ceased to engage in remunerative work for reasons other than his accepted incapacity and that s 24(2)(a)(i) is therefore invoked, with the result that Mr Ely does not satisfy the “loss test” imposed by s 24 of the VE Act. I have therefore decided to affirm the decision under review.
decision
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true
copy of the reasons for the decision herein
of Senior Member K BeanSigned: .....................................................................................
J Scobie AssociateDate/s of Hearing 16 June 2011
Date of Decision 19 August 2011
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent Dept of Veterans' Affairs Advocacy Section
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