FRANCIS HOPKINS and REPATRIATION COMMISSION
[2013] AATA 554
[2013] AATA 554
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4471
Re
FRANCIS HOPKINS
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Professor RM Creyke, Senior Member
Professor P Reilly, Member
Lieutenant-Colonel R Ormston (Retd), MemberDate 8 August 2013 Place Adelaide The decision under review is affirmed.
.......... [Sgd] .........
Professor RM Creyke, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Application for pension at the special rate – Date of cessation of employment – Whether alone test satisfied – Whether veteran genuinely seeking to engage in remunerative work – Whether service-related incapacity is the substantial cause of the veteran’s inability to obtain remunerative work – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 24
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Evidence Act 1995 (Cth) s 144
CASES
Cavell v Repatriation Commission (1988) 9 AAR 534
Commonwealth Shipping Representative v Peninsular & Oriental Branch Service [1923] AC 191
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission (2005) 87 ALD 347
Hall v Repatriation Commission (1994) 33 ALD 454
Hopkins v Repatriation Commission [2009] FCA 1037
Hopkins v Repatriation Commission [2011] FCA 386
Leane v Repatriation Commission (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Re Currey and Australian Community Pharmacy Authority (2007) 99 ALD 106
Re Hopkins and Repatriation Commission [2009] AATA 339
Re Hopkins and Repatriation Commission [2013] AATA 270
Re Reilly and Repatriation Commission (1987) 12 ALD 533
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Rendell v Repatriation Commission [2001] FCA 1881
Repatriation Commission v Sheehy (1995) 39 ALD 286
Sheehy v Repatriation Commission (1996) 66 FCR 569
Smith v Repatriation Commission (2012) 131 ALD 63
Starcevich v Repatriation Commission (1987) 18 FCR 221
SECONDARY MATERIAL
Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) 583–8 Commonwealth, Parliamentary Debates, 16 May 1985, 2,6455-6
REASONS FOR DECISION
Professor RM Creyke, Senior Member
Professor P Reilly, Member
Lieutenant-Colonel R Ormston (Retd), Member8 August 2013
History of applications
Mr Francis Hopkins, born 1950, is seeking pension at the special rate. The earlier history of his applications for disability pension and other benefits follows.
In a decision in 2007, the Repatriation Commission (Commission) accepted that a number of conditions claimed by Mr Hopkins were service-related. He was found to be entitled under the Veterans’ Entitlements Act 1986 (Cth) (Act) to pension assessed at 100 per cent of the general rate from and including 8 September 2006. That decision was affirmed by the Veterans’ Review Board (Board) in October 2007.
Mr Hopkins next sought pension at the special rate. On 14 May 2009, the Tribunal rejected that application on two grounds: Mr Hopkins had been retrenched from his last employment and hence had ceased work for reasons other than his incapacity from his war-caused conditions alone (Act section 24(1)(c)); and he had not genuinely been seeking to engage in remunerative work during the assessment period (Act section 24(2)(b)).
Mr Hopkins appealed to the Federal Court which upheld the decision of the Tribunal.[1] A second application for an extension of time in which to appeal that decision was refused.[2]
[1] Hopkins v Repatriation Commission [2009] FCA 1037.
[2] Hopkins v Repatriation Commission [2011] FCA 386.
On 22 June 2011, Mr Hopkins again applied to the Commission to increase the assessment of his disability pension to the special rate. That claim was rejected by the Commission on 12 July 2011 for the same reasons relied on by the Tribunal in 2009, and the decision was affirmed by the Board on 6 July 2012. On 8 October 2012 Mr Hopkins sought further review by the Tribunal.
The Commission applied under the Administrative Appeals Tribunal Act 1975 (Cth) section 42B to dismiss the present proceedings on the ground that these issues had already been decided by the Tribunal and upheld by the Federal Court. Section 42B provides in effect that the Tribunal may dismiss an application for review which can serve no useful purpose for an applicant.[3]
[3] Re Williams and Australian Electoral Commission (1995) 38 ALD 366; Re Currey and Australian Community Pharmacy Authority (2007) 99 ALD 106. Such decisions are labelled ‘frivolous or vexatious’, but the label does not necessarily have a pejorative meaning.
Following an interlocutory hearing on whether the matter should be dismissed under section 42B, the Tribunal decided not to grant the application for a dismissal as there were factual issues which could be further explored. The Tribunal hearing of the substantive issues took place in Adelaide on 1-2 July 2013.
Background and evidence
Mr Hopkins joined the Royal Australian Navy (Navy) in 1975 and served for eighteen and a half years until December 1994. He acquired fitting and turning and electronics technician qualifications.
Post-service he worked for seven to eight different employers in clerical or electronics technician positions. The clerical work mostly involved advising as to the electronics aspects of tenders. In May 2001 he commenced work for Advanced Systems Pty Ltd as an electronics technician. However, in November 2003 he and four other employees were made redundant. Following his redundancy Mr Hopkins commenced receiving unemployment benefit on 25 February 2004.
Mr Hopkins said after he was made redundant he applied for about ten jobs a week for ten or so weeks during the period prior to receipt of the unemployment benefit. On 12 February 2004 he had a fall at his parents’ home. According to a statutory declaration dated 18 May 2011 by his brother, who witnessed the event, ‘Frank said he had sudden severe lower back pain prior to collapsing’. This exacerbated his back and knee conditions.
The following month he received an offer of employment from one of the other four employees who had been made redundant. However, on hearing about the fall and its consequences, the offer was withdrawn. Later in 2004, Mr Hopkins was granted disability support pension. Mr Hopkins’s evidence was that he had another three to four falls at home in January to February 2006. However, he has not had a fall for the last two years.
Mr Hopkins sought the assistance of the Veterans’ Vocational Rehabilitation Scheme (VVRS) in late 2006, a formal referral being made on 19 February 2007. Mr Hopkins said he was anxious to avail himself of this opportunity as it was the only service, to his knowledge, which provided support for persons with significant disabilities in their search for employment. However, the report by the VVRS on 16 March 2007 concluded that no assistance would be provided to Mr Hopkins since retraining would ‘not improve Mr Hopkins (sic) chances of maintaining employment’. The reasons given were that although Mr Hopkins was ‘very employable based purely on his skills and experience’ any retraining would be hampered due to his ‘pain levels coupled with the drowsy effect of the medication’. Mr Hopkins said that from the time of the VVRS report he had regarded himself as unemployable.
Mr Hopkins has the following accepted disabilities:
·Lumbar sprain;
·Medial meniscus tear right knee;
·Lumbar spondylosis;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Sprain of the right ankle;
·Tinea;
·Ingrown toenails both feet;
·Bilateral pterygium; and
·Osteoarthrosis left knee.
Left upper lobe segmental collapse of lung – post infective, was rejected on 15 June 2007.
Mr Hopkins said his back problems, the referred sciatic pain in his leg, and his problems with both knees are the most incapacitating of his accepted conditions. He has been wearing orthotic garments for his right knee and his back since 2007. For the last five to six years he has taken eight Panadeine Forte tablets a day, commencing at midday, to alleviate his back and leg pain. He has also been a smoker for almost 50 years. An issue is whether this has caused him respiratory problems, including breathlessness. He said he is able to walk for nearly 2 kilometres at a time.
In a form entitled Medical Report – Ability to work (for disability pension purposes) completed 16 June 2005, Mr Hopkins denied being able to work 8 hours a week due to ‘back and knee problems’, which he said commenced six months prior to being made redundant in November 2003. Dr Janette Scanlon, Mr Hopkins’s former general practitioner, who completed part of the report said if Mr Hopkins was to work more than 8 hours a week he would need to be retrained and to be placed in employment where he did not need to lift in excess of 5 kg, and there would need to be adjustments for the limited time he could sit/stand.
Dr Wendy Bird, his current general practitioner, said in a report to the Department of Veterans’ Affairs (Department) that Mr Hopkins was incapable of lifting in excess of 5 kg. Mr Hopkins, in a document signed on 28 September 2004 and lodged with the Department on 5 October 2004 said ‘I am now starting to have problems at work because of [service-related] conditions’.
Issues
The issues are:
·Whether Mr Hopkins is qualified to receive the disability pension at the special rate. In particular:
o Whether Mr Hopkins can establish that it is his service-related injuries/diseases that are the only factors which prevent him from continuing to undertake remunerative work.
o In that context:
§ whether he has ceased to engage in remunerative work for reasons other than his incapacity from his service-related injuries/diseases;
§ whether he has ceased to engage in remunerative work for some other reasons; and
o As Mr Hopkins is under 65 and has not been engaged in remunerative work:
§ Whether he has been genuinely seeking to engage in remunerative work and but for his incapacity would be continuing to seek to engage in remunerative work; and
§ Whether the incapacity from his service-related injuries/diseases is the substantial cause of his inability to obtain remunerative work.[4]
[4] Act s 24(2)(b).
Legislation
The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth). Section 24 contains the criteria for payment of the disability pension at the special rate. Section 24 states, as relevant:
Special rate of pension
24(1) This section applies to a veteran if: …
(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 …
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
(2) For the purpose of paragraph (1)(c): …
(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.
Consideration
It must be established that the criteria in section 24 apply during the assessment period (Act section 19(9)). In Mr Hopkins’s case, the assessment period extends from 22 June 2011 until the matter is finally decided by the Tribunal or on further appeal by a federal court.
At the outset of the hearing, a preliminary issue raised by Mr Hopkins was whether the hearing involved a re-hearing of the matters which had been considered by the Tribunal in its reasons in 2009. The Tribunal advised Mr Hopkins that its jurisdiction was restricted to the claim he had made on 22 June 2011. That meant it would be applying the legislative provisions relevant to a claim for payment of pension at the special rate during the assessment period commencing on that date. In other words, it would not be reconsidering the claim made in 2006. The Tribunal assured Mr Hopkins, however, that the factual matters which had been identified in the interlocutory hearing decision handed down on 3 May 2013 could be considered in the current hearing. Accordingly Mr Hopkins agreed to continue the application for review.
The two issues raised in that interlocutory hearing for which evidence was either not taken into account or given insufficient weight are now considered.
Respiratory conditions
Evidence was provided that Mr Hopkins had contracted pneumonia prior to service. Pneumonia is not an accepted condition. According to Dr Michael Hlavac, respiratory physician, in a report of 7 August 2003, Mr Hopkins had a history of chest infections following a severe bout of pneumonia when he was 22. According to Dr Hlavac, however, his last attack was in 1993 and at the time of his report his opinion was that Mr Hopkins ‘was not necessarily unwell from a respiratory point of view’ and that any further malignancy was unlikely ‘despite his heavy smoking history’. As for any impact on Mr Hopkins’s level of incapacity and ability to work, Dr Hlavac’s report referred only to ‘mild breathlessness which he relates to smoking’.
Mr Hopkins provided service medical records showing he had a bout of pneumonia in both lungs and was admitted to hospital while on service on two occasions: between 12 November 1992 and 16 November 1992; and between 20 August and 28 August 1993. Subsequent x-rays of his chest by Dr Bob Buick, radiologist, found:
·22 October 1992: ‘There are irregular horizontal linear shadows in both lower lung fields, typical of plates of atelectasis. There is also moderate elevation of the right dome of the diaphragm, indicating greater loss of basal lung volume on the right than on the left. The heart is not enlarged and the lung fields are otherwise clear, with no sign any (sic) associated pleural reaction. … The visible findings are most commonly associated with bilateral basal broncho-pneumonia …”;
·10 November 1992: ‘linear opacity extending to the right mid zone and the left lung base with appearances being that of an infective process’;
·13 November 1992: ‘There is some residual linear opacity in the right mid-zone and also at the right costo-phrenic angle. The lungs are otherwise clear with no segmental consolidation or signs of pulmonary congestion. No hilar abnormality is seen’;
·21 December 1992: ‘horizontal and oblique linear shadows in the right middle lung field and the [sic] both lower lung fields, consistent with persistent bands of atelectasis from a previous process which has not completely resolved’;
·8 April 1993: ‘a few horizontal linear shadows in both lower lung fields, especially on the right … These appearances may indicate an acute inflammatory process, but there is no sign of any pleural fluid, and the lung fields are otherwise clear’.
Dr J Broadfoot, consultant radiologist, found in x-rays at the time:
·20 August 1993: ‘There is consolidation and atelectasis in the (R) Lower zone which appears to be in the (R) middle lobe. … There is increased irregular opacity adjacent to the lower (L) heart boarder (sic). This may represent consolidation with collapse although it does appear to be mass-like’.
·23 August 1993: ‘There has been some resolution of the (R) Lower zone consolidation over the past 3 days although residual changes with fluid in the minor fissure persist. There also appears to be slight resolution of the (L) Basal changes although some residual linear atelectasis is present’.
·27 August 1993: ‘There has been some clearing of the consolidation at the (L) base. The consolidation and Atelectasis at the (R) base is unchanged since 23/8/93’.
On 6 December 1994, Dr CA Cianciullo, radiologist, found following an x-ray ‘Lungfields show linear shadows at the left base consistent with scarring in this region. Remainder of the lungfields are clear’.
On 21 November 2005, Dr Huw Davies, respiratory specialist, reported ‘mild breathlessness and cough’. He noted of a CT scan of the chest and pulmonary function tests that they showed ‘essentially normal pulmonary function apart from a very fractionally reduced gas transfer factor which in fact is better than it was in August of 2003’. He went on: ‘His CT scan now is essentially normal apart from some very minor bibasal atelectasis. The upper lobe changes appear to have largely resolved’. In conclusion he said ‘Frank’s respiratory status is essentially normal and his minor cough and breathlessness are at least partly related to lack of fitness and his ongoing smoking’.
A report of Dr Henry Brigden dated 29 May 2007 noted that ‘Mr Hopkins does have some structural lung damage due to his initial bout of pneumonia – which has left him susceptible to further bouts of pneumonia. The longstanding X-ray changes represent persistent areas of scarring covered by the term atelectasis (ICD 9 Code: 518.0)’. Dr Brigden concluded that on the evidence he had seen in May 2007, Mr Hopkins was ‘not unfit for employment, although not necessarily fit for all types of employment’.
In 2004, his then treating doctor, Dr Janette Scanlon, certified Mr Hopkins unfit for work for the period 13 February 2004 to 16 December 2004 due to a number of conditions including chronic obstructive airways disease (COAD), and recurrent chest infections.
In summary, there is evidence that Mr Hopkins did have pneumonia pre-service and during service and he has some residual scarring of his lungs and some atelectasis as a consequence. Essentially, however, his lungs are normal and not incapacitating.
However, there is no evidence that he had COAD. This was another condition relied on to refuse Mr Hopkins’s application on the basis that it was a non-accepted condition which had affected his ability to seek work (Act section 24(1)(c)). The significance of this finding appears from this passage in the interlocutory hearing in 2013:
In the earlier proceedings the tribunal did not accept that Mr Hopkins had made reasonable endeavours to obtain employment after he was retrenched. In making this adverse finding as to his credibility, the tribunal appeared to have placed particular emphasis on an ‘admission’ Mr Hopkins had made to the VRB in proceedings in 2005 in response to questions asked by the VRB relating to his respiratory function, apparently on the basis of documents provided by Dr Scanlon. The tribunal’s reference to this matter was taken from the VRB’s reasons for decision, but not by reference to a transcript of the proceedings before the VRB. In the dismissal hearing before me, Mr Hopkins provided a copy of a bundle of medical certificates issued by Dr Scanlon relating to various periods in 2004. These certificates record various diagnoses and symptoms that appear to be related to his accepted conditions, as well as to COAD. The certificates are consistent with his explanation in the dismissal proceedings that he felt compelled to make the ‘admission’ to the VRB when he was confronted with the certificates, which include the diagnosis of COAD, since it appears that he was then not aware that that diagnosis was flawed. It would also appear that the ‘admission’ would not in any event have advanced his cause, because as the condition in question was not an accepted condition, he would not have satisfied the ‘alone’ test in s 24(1)(c) of the VE Act if his ‘admission’ was correct.[5]
[5] Re Hopkins and Repatriation Commission [2013] AATA 270 at [21].
Mr Hopkins was found in 2009 not to have been a credible witness concerning the admission relating to COAD at the VRB hearing. In turn this led the Tribunal to doubt his evidence that he had taken genuine steps to obtain work (Act section 24(2)(b)). This Tribunal did not find Mr Hopkins to lack credibility. His memory may at times have been faulty, but his testimony was an attempt to describe events, many of which happened a considerable time ago. The Tribunal accepts that Mr Hopkins did not suffer from COAD. Mr Hopkins’s admission was made in the face of medical evidence now found not to be correct. The respiratory symptoms from which he suffered appear to be due to other causes, not COAD.
Date of cessation of employment (Act section 24(2)(a))
That leads to the second of the issues raised in the interlocutory proceedings, namely, the correctness of the date of Mr Hopkins’s cessation of employment. As the Tribunal noted in the interlocutory proceedings:
This issue is important, because if the date of cessation of work was later than the date of retrenchment, there was evidence that his accepted conditions later prevented him from continuing to undertake remunerative work…
In my opinion, the question of when a veteran could be said to have ceased to engage in remunerative work will be informed by all relevant surrounding circumstances, including (as well as the nature of the veteran’s status as an employee or self-employed) his or her age, whether the cessation of employment was voluntary or involuntary, whether the veteran intended to finally cease work, and the veteran’s actions after stopping work, including whether he or she attempted to obtain other work, or obtained any treatment that might have been necessary in order to overcome some disability impacting on capacity to work.[6]
[6] Re Hopkins and Repatriation Commission [2013] AATA 270 at [22], [23].
It was accepted by the Tribunal in 2009 that the date of cessation of Mr Hopkins’s employment was 28 November 2003, the date on which he was made redundant.[7] Mr Hopkins has not worked since that date. However, as acknowledged in Re Reilly and Repatriation Commission[8] the date on which someone like Mr Hopkins was made redundant is not necessarily the date on which they ceased employment if there are indications that the person maintained an intention to seek other work.
[7] Re Hopkins and Repatriation Commission [2009] AATA 339 at [38].
[8] Re Reilly and Repatriation Commission (1987) 12 ALD 533 at [28]-[30]; Hall v Repatriation Commission (1994) 33 ALD 454.
Mr Hopkins was 52 or 53 when he was made redundant. He had been working consistently with a variety of firms prior to being made redundant. There is no evidence that it was his intention, despite the fact that he was getting close to 65, that he cease work. His seeking positions over the period after his redundancy until February 2004, and his offer of employment by a former work colleague (a position only withdrawn after Mr Hopkins’s fall at his parents’ home which exacerbated his back and knee conditions), is a further indication of that continuing intention.
The Tribunal notes that prior to Mr Hopkins receiving unemployment benefit, he sought at least 10 positions each week, as he was required to do if he was to receive that benefit. He provided no records of those applications which he said he continued for ten weeks. The 2009 Tribunal had doubted that a person could have made at least 10 applications over a period of two and a half months and not have records. The Tribunal in 2009 recorded Mr Hopkins’s reasons for the absence of records as ‘he destroyed all of his job applications as he did not wish to confuse any of those applications with subsequent applications which he may need to record on Centrelink application for payment forms’.[9] At the current hearing Mr Hopkins explained that his job-seeking process involved simply changing the address on a template application on his computer, and that he did not keep copies of these applications. However, he maintained that he had the master copy although it was not provided to the Tribunal. This Tribunal accepts Mr Hopkins’s explanation for the absence of this computer record from 2004, as this is a common practice in such circumstances, and does not doubt his credibility on this issue. When asked why he obtained no interviews at this time, Mr Hopkins said ‘Probably because of my age’.
[9] Re Hopkins and Repatriation Commission [2009] AATA 339 at [33].
Mr Hopkins did not receive unemployment benefit until February 2004. On 12 February 2004, Mr Hopkins had a fall in the driveway of his parents’ home which exacerbated his back and knee conditions. In March 2004, Mr Hopkins had been offered a position with one of his fellow employees who had been made redundant. However, on being informed about Mr Hopkins’s fall the potential employer said he ‘would be unable to perform the physical tasks associated with any proposed employment’ and withdrew the offer. The Commission argued that this offer was not indicative of Mr Hopkins’s attempts to seek work since there was no evidence that he sought the invitation. The Tribunal does not accept that argument since the offer was made by a fellow employee also made redundant at the same time as Mr Hopkins. So, he would have known that Mr Hopkins was out of work and was seeking work, whether or not he knew that Mr Hopkins had been submitting job applications during the three months prior to February 2004.
Mr Hopkins said he had applied for one or two other positions after the fall but had not applied for any positions after February 2004. In response to a question as to why he might have applied for positions when he was claiming at that time that he was not able to work, he responded that he believed that physiotherapy could improve his back and knee conditions sufficiently to enable him to undertake work. However, Dr Scanlon was unwilling to refer him to physiotherapy, and Mr Hopkins said he could not afford to pay for the physiotherapy until he had a medical referral. However, after Mr Hopkins changed general practitioner in January 2006, Dr Wendy Bird, who was aware that he had had several falls, did recommend physiotherapy. Mr Hopkins attended a physiotherapist for some eight/nine months during 2006 and has on occasions sought physiotherapy since and found it helpful in stabilising his back and knee condition. This evidence does indicate that Mr Hopkins continued to be interested in seeking employment after November 2003 and continued to apply for positions and obtained treatment, namely, physiotherapy, in order to better enable him to do so.
Towards the end of 2004 Mr Hopkins was granted a disability support pension (DSP). He had applied for DSP on 27 October 2004, one of the conditions of which is that recipients are incapable of working for more than 15 hours a week. In response to a question from the Tribunal as to whether he had continued to seek work at that time, Mr Hopkins said he could not approach Centrelink, which did provide work assistance schemes, the inference being that his DSP would be jeopardised if he sought assistance.
Mr Hopkins also said that, given his disabilities, he was not sure how to go about finding employment. However, a friend advised him about the VVRS service and he sought an appointment in late 2006. In February 2007 Mr Hopkins was assessed by that service but the VVRS report, dated 16 March 2007, said that despite his employability on skills and experience grounds, Mr Hopkins’s ‘pain levels coupled with the drowsy effect of the medication would make concentration difficult’ and denied him assistance. Mr Hopkins said from the time of the report he believed he was unemployable. He has not sought positions since.
The Tribunal finds that although Mr Hopkins did not actively seek work from February 2004, Mr Hopkins still had an intention to work until March 2007 when the VVRS report indicated he was not employable. He believed until then that, had his pain levels and conditions been better managed with medication and physiotherapy, he was still capable of doing some work. The Tribunal is prepared to find, accordingly, that Mr Hopkins’s date of cessation of work was not November 2003 when he was involuntarily made redundant, but was at least February 2004. Until then he had actively been seeking work. The Tribunal notes that his date of cessation could possibly also have been March 2007. However, given its conclusions on the next issues, it has not needed to make a definitive finding on this question.
Whether Mr Hopkins is qualified to received disability pension at the special rate
Mr Hopkins’s latest application for pension at the special rate was made on 22 June 2011. He was then 61 years of age, that is, under 65. Accordingly, as at June 2011, Mr Hopkins must establish that he meets those provisions of section 24 of the Act which apply to persons who have not turned 65. The Commission has conceded that Mr Hopkins meets the provisions of sections 24(1)(a) and (b). The Tribunal finds that this was an appropriate concession.
That leaves for consideration the requirements of section 24(1)(c) of the Act, that is, whether Mr Hopkins’s application meets the ‘alone’ test, as modified by section 24(2)(b) since Mr Hopkins ceased to work in 2003.[10] As identified earlier, this raises three principal questions:
·Whether Mr Hopkins has ceased to engage in remunerative work for reasons other than his incapacity from his service-related injuries/diseases;
·As Mr Hopkins is under 65 and has not been engaged in remunerative work, whether he has been genuinely seeking to engage in remunerative work; and
·Whether, but for his service-related injuries/diseases, he would be genuinely seeking to engage in remunerative work and his incapacity is the substantial cause of his inability to obtain remunerative work.
[10] Act ss 24(1)(c), 24(2)(b).See also Flentjar v Repatriation Commission (1997) 48 ALD 1.
There is no issue that the type of remunerative work that Mr Hopkins was undertaking,[11] namely substantial work, effectively performed,[12] was as a clerk and as an electronics technician. Mr Hopkins had been employed as a fitter and turner but he has not worked as a fitter or turner since 1998 and says he could no longer do so since the work involves standing for periods, bending and lifting and these activities are prevented by his back and knee conditions.
Whether Mr Hopkins has ceased to engage in remunerative work for reasons other than his incapacity from his service-related injuries/diseases?
[11] Re Banovich and Repatriation Commission (1986) 9 ALN N223.
[12] Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Sheehy v Repatriation Commission (1996) 66 FCR 569.
The Tribunal’s finding in 2009 was that Mr Hopkins ceased to engage in remunerative work for reasons other than his incapacity from his service-related injuries/diseases, that is, his breathlessness and his lung condition, namely, COAD/gastro-oesophageal reflux disease (GORD). The non-accepted conditions listed by Dr Scanlon in a report on 16 June 2005 were diabetes, crush fracture T7, COAD, renal colic, GORD, abscess and hyperlipidaemia. The only conditions she said were incapacitating were his diabetes, his crush fracture, and his respiratory conditions (COAD/GORD).
Dr Scanlon, in a report for the purpose of an application to the Department, suggested that his diabetes was not well controlled. Mr Hopkins denied that his non-service-related diabetes was not being managed appropriately and indicated he was on medication (Metformis 500mg daily) for the condition.
Dr Scanlon’s report on 16 June 2005 had noted that Mr Hopkins would need to be retrained in order to work in excess of 8 hours a week, that he could not lift more than 5 kg, and adjustments would need to be made as he could not sit/stand for more than short periods of less than an hour.
At the hearing, Dr Scanlon said that it appeared that by November 2005, Mr Hopkins’s lung problems had resolved and she said any breathlessness he experienced could not be due to physical musculoskeletal conditions. She also said that up until the end of 2005 when she ceased treating him, his request for scripts for Panadeine Forte were infrequent and months apart. Her 2005 report and her evidence to the Tribunal suggest that she did not rule out his being able to be employed.
At the hearing, Dr Bird referred to Mr Hopkins’s non-accepted disabilities and said his diabetes was ‘well-controlled’, that his gastro-oesophageal reflux disease (GORD) would not affect his ability to work, that his crush fractures at T5, T6, and T7 would lead to ‘anything from slight pain to nothing’, that Mr Hopkins had never reported anything significant about his respiratory difficulties, and that x-rays had showed ‘no significant pathology’ in his lungs. The disabilities Dr Bird listed in her report of 23 November 2007 did not include any respiratory conditions. She confirmed at the hearing that his ability to work from 2008 would have been reduced.
She did note, however, that his back pain had significantly worsened during 2007 and his requirement for Panadeine Forte had increased during 2007 and by September 2007 had doubled. She accepted that his ability to work since then would have been reduced. However, since obtaining the orthotics for his lower back and knee in May 2008, she said his need for pain relief had been static. She also noted that his hearing loss, which necessitated a hearing aid, did mean that he was best able to hear when only one person was speaking and there was minimal background noise.
On 23 November 2007, Dr Bird reported that Mr Hopkins’s ‘war-caused and defence-related disabilities by themselves are sufficient … to limit the veteran’s ability to work’, and ‘The veteran’s other disabilities do not affect his ability to work’. On 19 February 2008, Dr Bird also produced a report stating ‘The veteran is no longer capable of working 8 or more hours per week and this is likely to be permanent’.
Dr Davies’s report in November 2005 was that Mr Hopkins’s ‘respiratory status is essentially normal and his minor cough and breathlessness are at least partly related to lack of fitness and his ongoing smoking’. He confirmed that he was not necessarily unwell from respiratory conditions. His evidence at the hearing was that Mr Hopkins’s exercise tolerance, based on his examination of him in 2005, was ‘normal or near to normal’, that he would, at most have mild COAD, and that his GORD and other respiratory conditions were of minimal impact. Dr Davies also said that to ascribe breathlessness to back pain was not common, although he said it was possible to get secondary aches and pains after coughing.
Dr Brigden’s opinion, based on evidence in May 2007, was that Mr Hopkins was ‘not unfit for employment, although not necessarily fit for all types of employment’.
Dr Graham Long, consultant occupational physician, reported on 3 November 2008 that Mr Hopkins would have continued to work but for his redundancy. That was confirmed by Mr Hopkins in his consultation with Dr Long. However, Dr Long noted that ‘His level of disability was however increased significantly following a fall in February 2004, which he had attributed to his back complaint’.
A Bone Densitometry Unit test dated 20 January 2006 recorded osteopenia of the left hip and recommended ‘mild to aggressive therapies’ with a repeat study in 1-2 years.
The VVRS reported in March 2007 that Mr Hopkins was no longer employable due to his pain levels and the drowsiness effect of his medication for his service-related disabilities. On 16 March 2007, Mr Hopkins was advised that his rehabilitation program with CRS Australia was closed.
The DSP assessor, in the segment of the application form for DSP completed in October 2004 headed ‘Barriers to economic and social participation’, noted:
· Physical limitations: Limited respiratory functions, restricted mobility and reduced physical limitations affecting his endurance levels.
· Motivation: Limited motivation to set/pursue work/personal goals
· Limited work/trades: Restricted work choices, due to limited consideration of the variety of potential options.
· Job seeking skills: Would require assistance to help with job-seeking.
In summary, the predominant view of the medical and occupational specialists was that Mr Hopkins’s non-accepted disabilities of diabetes (controlled by diet and medication) and respiratory problems, including GORD and his left upper lobe segmental collapse of lung post infective, had largely resolved; his breathlessness was minor, and partly due to smoking and lack of exercise; and his long-sightedness (hypermetropia), corrected with glasses, did not prevent him working. The Tribunal has concluded that his non-accepted medical conditions did not prevent him working, as at 22 June 2011.
The DSP assessment raises other non-service-related matters. The information under physical limitations is at least incorrect in relation to his ‘limited respiratory functions’ as the medical evidence indicates. The conclusion as to his motivation is at least partially discounted by the finding that Mr Hopkins continued to seek work at least until March 2007. The Tribunal on this occasion received no evidence as to Mr Hopkins’s willingness or otherwise to seek work in alternative occupations which might be more suitable given his disabilities. Nor was there evidence as to his job-seeking skills other than the report by Dr Scanlon that he would need some retraining. The Tribunal is conscious that this assessment was done in 2004, prior to the deterioration of Mr Hopkins’s service-related conditions in 2007. Accordingly, and given the discounting of at least two of the findings, the Tribunal gives these assessments some but limited weight.
Nonetheless, although the Tribunal accepts that it is Mr Hopkins’s accepted lower back and knee conditions which are the principal reason he is not in remunerative work, they are not the sole conditions. Other non-accepted conditions, including his respiratory conditions, his lack of fitness, even if of minimal impact, his length of time away from work, and possibly his absence of motivation, continue to have some adverse effect on his ability to work. Accordingly Mr Hopkins does not meet the ‘alone’ test in section 24(1)(c).[13] There are factors other than his accepted conditions which impact on his employability (see also later).
[13] See, eg, Forbes v Repatriation Commission (2000) 101 FCR 50 at 57.
That means the Tribunal must consider section 24(2)(b) of the Act which applies to a person who has ceased work. Sackville J in Repatriation Commission v Sheehy[14]said of the tests in section 24(2)(b) that they specified ‘three criteria applicable to a veteran under the age of 65’:
·That the veteran has been genuinely seeking to engage in remunerative work;
·That the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and
·That the incapacity is the ‘substantial cause’ of the veteran’s inability to obtain remunerative work in which to engage.
[14] Repatriation Commission v Sheehy (1995) 39 ALD 286 at 291-2.
As Mr Hopkins is under 65 and has not been engaged in remunerative work since 2003, the issue is whether he has, since then, been genuinely seeking to engage in remunerative work. Although Gordon J in Smith v Repatriation Commission[15] expressed the tentative view that section 24(2)(b) did not apply to a veteran who had worked post-service, that is not the predominant view of the interpretation of that provision. Nor is it consistent with the interpretation of section 24(1)(c), the provision to which section 24(2)(b) is directed, which has not been interpreted as applying only to veterans who have never worked since service.
[15] Smith v Repatriation Commission (2012) 131 ALD 63 at [41].
In Giesen v Repatriation Commission[16] Gray J accepted a submission by the Repatriation Commission that the terms of section 24(2)(b) could apply to someone who had worked post-service, but whose service-related disabilities had, at some point before the person turned 65, been the substantial cause of the person’s not being in the workforce. That finding is consistent with the terms of the Second Reading Speech to the Repatriation Legislation Amendment Bill 1985 (Cth) which referred to the introduction of the special rate pension as being payable ‘in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment’ (emphasis added).[17]
[16] Giesen v Repatriation Commission (2005) 87 ALD 347 at 353.
[17] Commonwealth, Parliamentary Debates, 16 May 1985, 2,6455-6.
In Magill v Repatriation Commission[18] Gray J said:
If, however, a veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the ‘alone’ criterion in s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran's inability to obtain work, provided the veteran nevertheless meets the requirements of s 24(2)(b). (emphasis added)
The expression ‘at the relevant date’ meant the application date.[19] The implication is that Gray J would have supported an interpretation of section 24(2)(b) which permitted it to apply to a veteran who had worked for a period post-service.
[18] Magill v Repatriation Commission [2002] FCA 744 at [8].
[19] Magill v Repatriation Commission [2002] FCA744 at [5].
In Rendell v Repatriation Commission,[20] French J said:
Section 24(2)(b) is ameliorative of s 24(1)(c) and is to be applied where the Tribunal is satisfied that the veteran has been genuinely and actively pursuing remunerative work in the sense of looking to obtain work and that war-caused incapacity is the substantial cause of his inability to obtain it. In this case however, the Tribunal's finding of other significant factors being involved in the applicant's failure to continue or resume remunerative work negates the characterisation of his accepted war-caused disabilities, including the PTSD, as the “substantial cause of his or her inability to obtain remunerative work.” (emphasis added)
[20] Rendell v Repatriation Commission [2001] FCA 1881 at [37]. See also Leane v Repatriation Commission (2004) 81 ALD 625.
The Tribunal has found that Mr Hopkins was genuinely seeking work at least until February 2004. The Tribunal has also tentatively found, given that Mr Hopkins had not abandoned his attempts to seek work after February 2004, and in 2006 obtained medication and undertook physiotherapy, and in late 2006 sought the assistance of the VVRS, with a view to resuming work, that he continued to have an intention to re-enter the workforce and was genuinely seeking to work at that time. It was only after the VVRS report in March 2007 that Mr Hopkins said he perceived himself as unemployable. So, despite the finding of the DSP assessor that Mr Hopkins in 2004 lacked motivation to return to work, the Tribunal finds that until March 2007 Mr Hopkins remained committed to a return to the workforce. Accordingly he has been genuinely seeking remunerative work until March 2007.
That the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work
As the evidence of Dr Bird indicates, Mr Hopkins’s service-related back and knee conditions have worsened in the last five years. His need for pain relief medication doubled by mid-2007, thereby increasing his drowsiness and inability to drive, or to maintain work involving any concentration. Mr Hopkins said in evidence that he commences taking his daily dose of eight Panadeine Forte at about noon each day. That only leaves the morning as the period when Mr Hopkins is not affected by drowsiness. Mr Hopkins’s evidence is that he gets up at eight to nine in the morning to undertake domestic matters, but by midday his pain from his back becomes more intense and he needs to start taking Panadeine Forte to ease it. Otherwise he says he cannot sleep at night. He cannot drive after he starts taking his medication. His worst pain is in his lower back, and he also gets sciatic pain in his thigh on the right side. He feels pressure when he pushes a trolley in a supermarket. He is limited to sitting for short periods usually between 15 and 30, minutes but he can on occasions manage up to 60 minutes.
The Tribunal is satisfied on the medical evidence about Mr Hopkins’s inability to work more than eight hours a week, and the evidence about his daily regime, that Mr Hopkins’s service-related disabilities mean he is incapacitated by his service-related conditions. Taking a commonsense view of his situation,[21] his service-related incapacity prevents him continuing to seek to engage in remunerative work.
That the incapacity is the ‘substantial cause’ of the veteran’s inability to obtain remunerative work in which to engage
[21] Cavell v Repatriation Commission (1988) 9 AAR 534 at 539.
The Tribunal is also satisfied, given the evidence about the minimal impact of his non-service-related injuries or diseases, that on medical evidence alone, Mr Hopkins’s service-related back and knee conditions are a major cause of his inability to obtain remunerative work. That is not the end of the consideration.
At the beginning of the assessment period in June 2011 Mr Hopkins was 61 years of age. At that time he had not worked for eight years. When asked at the hearing why he thought he had received no interviews to his hundreds of applications in 2003-04, Mr Hopkins said, ‘Probably my age’. So even in 2004, when he was 54, Mr Hopkins considered his age a possible barrier to his employability.
The Tribunal has found that the ‘remunerative work’ Mr Hopkins was engaged in for the purposes of the Act was as an electronics technician or doing clerical work related to that qualification, namely, preparing tenders and providing advice concerning technical electronic work. As a matter of common knowledge, of which official notice may be taken by the Tribunal,[22] this is an occupation in which developments and changes are rapid. Mr Hopkins, by his admission, has not sought work since at least 2007 and the Tribunal infers accordingly that he has not sought to update his knowledge in this technical area since that time. This would impact adversely on his ability to find work in these fields.
[22] Commonwealth Shipping Representative v Peninsular & Oriental Branch Service [1923] AC 191 at 212 (Sumner LJ); Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) 583–8; Evidence Act 1995 (Cth) s 144.
In Leane v Repatriation Commission[23] the Full Court of the Federal Court pointed out that the effect of section 19 of the Act is that, if the veteran is to qualify for the pension at the special rate, the veteran must be able to establish that during the assessment period the veteran met the criteria in, relevantly, section 24(2)(b) of the Act. As the Court said:
… if the veteran had satisfied the tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely seeking to engage in remunerative employment) then, at least from that time, the veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.[24]
[23] Leane v Repatriation Commission (2004) 81 ALD 625.
[24] Ibid at [32].
Section 24(2)(b) requires analysis, not least because of the careful way in which it is couched. It can be accepted that the criteria listed in section 24(2)(b) must be present during the assessment period. However, the first two criteria, that the veteran ‘has been genuinely seeking to engage in remunerative work’, and that ‘but for [the veteran’s] incapacity, [the veteran] would be continuing so to seek to engage in remunerative work’ refer to matters which, as a matter of grammar, and of logic, may occur at any time after service, up to and including the assessment period. During the assessment period the person must be able to establish that at some point post-service, the person has genuinely been seeking work, but their service-related incapacity has precluded them from continuing to seek work. As a consequence the person has ceased attempting to do so. This would usually have occurred prior to the assessment period since it is these circumstances that have led to the person seeking the disability pension at the special rate. So, provided these criteria have occurred at some point prior to the assessment period, these criteria will have been met during the assessment period.
The final criterion is that the ‘incapacity is the substantial cause of [the person’s] inability to obtain remunerative work in which to engage’ (emphasis added). This criterion is expressed in the present tense and the person must establish, during the assessment period, that the incapacity is at that time, the substantial reason for the veteran’s inability to obtain work. The Tribunal takes it that comments indicating that all of the criteria in section 24(2)(b) must be met during the assessment period[25] are to be so interpreted.
[25] Leane v Repatriation Commission (2004) 81 ALD 625 at [32]; Smith v Repatriation Commission (2012) 131 ALD 63 at [41].
Mr Hopkins has been genuinely seeking employment post-service. Equally, the fact that, but for his incapacity, he would be continuing to seek to engage in remunerative work, is a position he had reached in 2007 following the VVRS report, and is continuing, so he meets that criterion in the assessment period. The final issue, however, is whether ‘his incapacity is the substantial cause of his inability to obtain remunerative work’.
The Tribunal finds that on and from 22 June 2011, although Mr Hopkins’s service-related incapacity is a significant cause of his inability to work and has been so since at least 2007, the effects of age on his employability, his belief that he is no longer employable, and the fact that, as a consequence, his technical skills and knowledge in the swiftly moving area of electronics have not been updated, coupled with possible motivation issues for someone who has been out of the workforce for the last ten years, and who has not sought, even for short periods, to be retrained so he could work in other occupations, are now the substantial causes of his inability to find remunerative work. Accordingly the Tribunal is not satisfied that Mr Hopkins’s service-related incapacity is the substantial cause of his inability to obtain remunerative work on and from 22 June 2011.
That means the decision under review is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member, Professor P Reilly, Member, and Lieutenant-Colonel R Ormston (Retd), Member. ..... [Sgd ] .....
Associate
Dated 8 August 2013
Dates of hearing 1-2 July 2013 Applicant In person Advocate for the Respondent Mr A Crowe Department of Veterans' Affairs Advocacy Section
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