Frederick Ferdinands and Repatriation Commission

[2014] AATA 215

[2014] AATA 215

Division	VETERANS' APPEALS DIVISION
File Number	2013/3332
Re	Frederick Ferdinands
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	11 April 2014
Place	Brisbane

The Tribunal affirms the decision under review.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from war-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours
per week – Accepted disabilities alone not responsible for inability to undertake remunerative
work – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24, 120

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Smith (1987) 15 FCR 327

Willis v Repatriation Commission [2012] FCA 399

REASONS FOR DECISION

Mr R G Kenny, Senior Member

11 April 2014

1. On 23 July 2012, Frederick Ferdinands (“the applicant”) applied, under s 15 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), to the Repatriation Commission (“the respondent”) for an increase in the rate of pension payable to him in respect of the following conditions: posttraumatic stress disorder, gastro oesophageal disease, irritable bowel syndrome, penile warts, erosive duodenitis, lichen planus, miliaria rubra, erectile dysfunction, bilateral sensorineural hearing loss, tinnitus, malignant neoplasm of the prostate, major depressive disorder and alcohol use disorder in partial remission.

   
   

   He had been in receipt of pension at 100% of the general rate. On 20 August 2012, the respondent rejected the applicant’s claim and continued pension at 100% of the

   
   

   general rate. The respondent’s assessment decision was reviewed and affirmed by the

   
   

   Veterans’ Review Board (“the Board”) on 18 June 2013.

   ISSUES AND LEGISLATION

2. The standard of proof applicable to assessment of pension is set out in s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction.

   This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The procedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which is defined as meaning the period starting on the application day, in this case

   
   

   23 July 2012, and ending when the claim or application is determined.[2]

   [1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

   [2] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).

3. It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate. The issue raised for the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 23 or s 24 of the Act (the intermediate and special rates, respectively) and, if so, the date from which that higher rate of pension is payable.

4. For the special rate of pension, the matters that need to be determined are whether or not the veteran meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:

   (1) This section applies to a veteran if:

   …

   (a)…

   (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

   …

   (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

5. The requirements for the intermediate rate are identical except for paragraph (b). To that end, ss 23(1)(b) and 23(2) of the Act, read:

   (1)       …

   (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.

   …

   (2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

   (a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or

   (b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

6. For the applicant, Mr John Lawrence of counsel and, for the respondent,

   
   

   Mr Bruce Williams agreed that the earliest date from which the special rate of pension may be payable is 23 July 2012. Mr Williams conceded that the veteran met the requirements of ss 24(1)(a)(i)[3] and 24(1)(b)[4] of the Act. However, he submitted that

   
   

   s 24(1)(c)[5] thereof has not been met by the applicant during the assessment period.

   
   

   Mr Lawrence advised that the applicant, who was aged under 65 years at the application date, had not sought remunerative work since he was awarded the service pension on

   
   

   19 November 2009 and that, accordingly, no reliance was placed by him on s 24(2)(b) of the Act. He contended that all aspects of s 24(1)(c) of the Act were met by the applicant on the basis that it was the applicant’s accepted disabilities alone which had prevented him from continuing in or obtaining further remunerative work from 2005. Mr Williams submitted that the applicant has remained out of remunerative work since that time because of a range of factors unrelated to his accepted disabilities.

   [3] As well as its s 23(1)(a)(i) equivalent.

   [4] As well as its s 23(1)(b) equivalent.

   [5] As well as its s 23(1)(c) equivalent

   THE APPLICANT’S EVIDENCE

7. The applicant completed national service with the Australian Army in 1971. He was in a corps of engineers and was engaged in road and bridge building projects in
   South Vietnam as well as mine clearing and general infantry duties. He was promoted to the rank of corporal at that time. He then worked in the building industry before undertaking a two year course of study to obtain a certificate in civil engineering.
   For about 12 months, he worked for a private engineering company as a designer and site supervisor but wanted to work for the government. He joined the Main Roads Division (“Main Roads”) in the Queensland Public Service from 1978 where he was engaged in a wide range of design work particularly with roads and highways. His evidence was that he accepted a redundancy arrangement in 1997 because he wanted to undertake contract work. He did this with Main Roads in Roma and earned substantially more as a contractor than he had done as an employee. He returned to Brisbane and undertook periodic contract work with Main Roads and Translink until November 2005.
   The contract periods were up to six months and he had a break of a few weeks before commencing a further contract. His work involved him in design of bus stop signage as well as the organising of their manufacture and installation. He was also responsible for traffic engineering and road safety projects.

8. The position which the applicant had filled on a contract basis was advertised as a permanent position in July 2006. He applied for it but was not successful. He understood that the final decision was made as between him and the successful candidate on the basis of their respective formal qualifications. He said that, although the advertised prerequisites for the position did not include a university degree, he understood that it was one of the “P positions” which required a university qualification.[6] He was told by “the boss” that he “needed a degree to get the job”. He understood that the relevant qualification was a university bachelor degree in engineering technology which he did not have. In his evidence to the Board, the applicant said that he was unsuccessful because he had “not been actively involved in design work since 1997” and “was no longer current with the programs which had been introduced since then”. In his evidence, the applicant agreed that he provided those responses to the Board but said that they were not correct statements. He said that he wanted to give “quick answers” and decided to respond with answers that he believed the Board members “wanted to hear”. He said that he was capable of upgrading his knowledge of any later programs and had remained computer literate through his involvement in a basic computer course he conducted with veterans. In a statement, dated 18 December 2013, the applicant wrote that he responded to the Board’s questions as he did because it was easier than attempting to explain his feelings associated with lack of concentration, frustration and not wanting to be with his co-workers.

   [6] See transcript of the hearing at p 27.

9. After his job application in 2006, he subsequently applied for other work, including a teaching position with a TAFE college. In the 1980s, the applicant had joined the
   Army Reserves where he successfully completed an officer training course. Another job application he made in 2006 was an education officer’s position with the Army. He was unsuccessful with these applications as he had no formal teaching qualifications.
   The applicant applied for the service pension in 2009, which was granted in November that year.

10. In a statutory declaration, dated 5 April 2013, the applicant referred to a redundancy package offered to him in 1997 by Main Roads. He wrote that the only reason he accepted it was his ill health. In that regard, he described problems in the workplace and identified anger, anxiety, depression and sleep disturbance accompanied by an inability to concentrate.

11. The applicant was asked whether he had problems in the workplace with Asian workers. He was referred to an incident involving a female Vietnamese co-worker. He recalled overhearing a conversation in Vietnamese between her and another man. He was unable to understand the conversation but believed that he had been referred to. He advised her that it was rude to discuss other people when using a foreign language. He denied that he had a problem with Asian people and said that he and the worker had subsequently socialised together.

    MEDICAL EVIDENCE

    Dr Tod Wakefield, psychiatrist

12. Dr Wakefield completed reports on 15 March 1999, 14 August 2003 and 21 March 2013. He has been treating the applicant since 1998 when he was a patient at the

    
    

    Toowong Psychiatric Hospital. The applicant had taken an overdose of medication in the context of marital disharmony and plans for separation. At the outset, Dr Wakefield diagnosed the applicant as having posttraumatic stress disorder. In his final report,

    
    

    Dr Wakefield described difficulties which the applicant had in the workplace because of his posttraumatic stress disorder and depression and noted that these led to his resignation from his Department of Transport position in 2005. Dr Wakefield’s opinion was that posttraumatic stress disorder was the main reason for his cessation of work and that he was incapable of work because of the condition.

    Dr Richard Thomis, psychiatrist

13. Dr Thomis has seen the applicant recently in the absence of Dr Wakefield who has been unwell. He wrote, on 27 November 2013, that the primary diagnosis in the applicant is posttraumatic stress disorder and that this prevents him from working.

    OTHER EVIDENCE

14. In evidence were statements from three of the applicant’s former co–workers.

    
    

    Kirk Geronimos was to give evidence and to be available for cross examination. However, on the day of the hearing, he could not be contacted. In an unsworn statement, dated 18 February 2014, Mr Geronimos wrote that he had worked with the applicant for many years and was aware that he had interpersonal difficulties with some of his

    
    

    co-workers. However, he praised the applicant’s computer–based abilities and his opinion was that the design programs currently in use are not very different from those that the applicant had used in 2005. Mr Geronimos referred to the need for the applicant to undertake a refresher course to be employable in the industry but he was confident that this would present no difficulty to the applicant.

15. Paul Dalitz completed a statutory declaration on 7 July 2012. He was the applicant’s manager in 2004-5. He described difficulties that the applicant had in fitting into a team environment, anger problems and disputations with other workers. Nonetheless,

    
    

    Mr Dalitz described the applicant as a valuable member of his staff.

16. Yen Nguyen completed a statutory declaration on 26 June 2012. She was under the applicant’s supervision in 1988 at the Main Roads Department. She is Vietnamese and she wrote that the applicant “had trouble with people at work and with [her] especially being Vietnamese.”

    CONSIDERATION

17. I am reasonably satisfied that the concessions by Mr Williams in respect of ss 24(1)(a)(i) and 24(1)(b) of the Act have been properly made. I am also reasonably satisfied that such is the case in relation to s 24(2)(b) of the Act as conceded by Mr Lawrence.

    Section 24(1)(c) of the Act

18. This provision involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[7] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act[8] requires responses to the following questions:[9]

    1. “What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?”

    2.   Is the veteran, “by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?”

    3.   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?”

    4.   If the answers to questions 2 and 3 are, in each case, yes, is the veteran, “by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

    Question 1:

    [7] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.

    [8] This has equal application to s 23(1)(c) of the Act.

    [9] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.

19. Relevant “remunerative work” refers to “the type of work which the member previously undertook and not to any particular job”.[10] As I understand the applicant’s situation, the relevant remunerative work is computer-based engineering work with an emphasis on traffic and road safety and design.

    Question 2:

    [10] See Banovich v Repatriation Commission (1986) 69 ALR 395 at 402.

20. It is not contested that the applicant’s conditions which have been accepted under the Act are of sufficient severity to have prevented him from continuing to undertake that work. That is the effect of the reports of Dr Wakefield and Dr Thomis. This was throughout the assessment period. In particular, the conditions which have so prevented him are those relating to his psychiatric state.

    Question 3:

21. The third of the questions noted above raises in issue the first part of s 24(1)(c)[11] of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission,[12] Bromberg J said:

    [23] The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment.  The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment.  The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate.  The war-related incapacity must be the lone factor which prevents continued employment.  That is what is meant by “alone”.

    [24]

    Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. 

    
    

    If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.

    [11] And also s 23(1)(c) of the Act.

    [12] [2012] FCA 399 (emphasis in original).

22. There must be no factor, apart from the conditions accepted under the Act, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[13] In the event that they would have contributed to preventing the applicant from doing so in the assessment period, s 24(1)(c)[14] of the Act will not be satisfied.

    [13] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54-55; Repatriation Commission v Alexander (2003) 75 ALD 329 at 334.

    [14] And also s 23(1)(c) of the Act.

23. Mr Williams submitted that other factors were relevant in this matter and, in particular, he identified the applicant’s lack of formal qualifications for the work he sought.

24. Mr Lawrence submitted that it was the applicant’s posttraumatic stress disorder which was solely responsible for the applicant remaining out of work since his last job in 2006. He referred to the psychiatric problems that the applicant had in the 1990s and submitted that these impacted on his capacity to work and to engage with Asian persons.

    
    

    Mr Lawrence submitted that the evidence demonstrated that the applicant had a strong work ethic and did not accept that it was lack of formal qualifications which prevented him from obtaining work. Mr Lawrence submitted that the applicant’s age was not a prohibition to finding work; that the duration of time out of the workforce had not dulled his willingness to work or his skill base; that his qualifications and computer skills remain current; and that he has actively attempted to find work. In relation to the applicant’s computer skills, he referred to the evidence of Mr Geronimos and to his opinion that design programs currently in use are not very different from those that the applicant had used in 2005 and that the applicant would, by taking a refresher course, be employable in the industry.

25. I do not accept that an absence of formal qualifications did not play a part in the applicant being out of work since 2005. His clear evidence was that, when he applied for the position he had been undertaking on a contract basis with Main Roads, his lack of a university degree was the reason that he was not appointed to the permanent position.

    
    

    He also referred to the lack of qualifications in being unsuccessful in obtaining a teaching position with the Defence Department. He said that a requirement for that position was a degree in education which he does not have.

1. I do not accept Mr Lawrence’s submission that, from the 1990s, the applicant’s psychiatric conditions impacted on him and his capacity to relate to Asian co-workers in a manner sufficient to prevent him from working. His evidence was that he did not have a problem with Asian workers and that, subsequent to an altercation at work with an Asian woman, he socialised with her. Indeed, she was willing to provide evidence for the hearing.[15] In a statement, dated 5 April 2013, the applicant said that, in 1997, he took a redundancy package because of ill health and, clearly, the applicant advised

   
   

   Dr Wakefield that he ceased work in 2005 because of his posttraumatic stress disorder. However, that was not his evidence. He said that he took the package in 1997 because he wanted to try working as a contractor and did so for the remainder of his working life until 2005. He did this with various employers and his evidence was that he earned substantially more in that role than he had done as an employee. The work history of the applicant is one of continuing involvement from 1997 to 2005 on contracts of several months duration with a break of a few weeks before undertaking a new contract.

   
   

   He ceased work in 2005 because his contract came to an end and he sought to re-engage in that position on a permanent basis in 2006. While acknowledging some interpersonal difficulties in the workplace, Mr Geronimos praised the applicant’s abilities and

   
   

   Mr Dalitz described him as a valuable member of his staff.

   [15]  Statutory declaration of Yen Nguyen, dated 26 June 2012.

2. I am satisfied that the applicant has skills in computer use. He conducts training courses at an RSL club but these are at a very basic level. Mr Geronimos praised the applicant’s computer skills and Mr Lawrence, in his submission, described Mr Geronimos’ evidence as unchallenged. In reality, his evidence was unsworn and, for unknown reasons, he was unavailable to give evidence after indicating that he would be available. I approach his evidence with a degree of caution especially in light of the description given by the applicant to the Board about his computer skills. He told the Board that he had “not been actively involved in design work since 1997” and “was no longer current with the programs which had been introduced since then”. I am satisfied that there is some truth in that description despite the explanation he gave in evidence as to why he responded to Board questioning in that way. It defies all logic that, in a hearing about an increase in his pension, he gave “quick answers” that he believed the Board members “wanted to hear” and that he did so because it was easier than attempting to explain his feelings associated with lack of concentration, frustration and not wanting to be with his co-workers.
   Mr Geronimos expressed the opinion that the applicant would need refresher training on current versions of the computer programs to be employable. I am reasonably satisfied that the applicant would need to undertake some training to bring his skills up to a standard to gain employment in performing the functions he carried out with

   
   

   Main Roads.

3. By the commencement of the assessment period, the applicant had been out of work for more than six years. I am satisfied that such a period of absence, along with his lack of the formal qualifications in the field of relevant work, as well as a degree of loss of familiarity with current computer programs in that field have all played a part in the applicant no longer being engaged in remunerative work during the assessment period. This means that it is not his accepted disabilities alone which are responsible for his absence from remunerative work. Accordingly, the third of the questions noted above is answered in the negative.

   Question 4

4. As the third question was answered in the negative, it is unnecessary to consider the fourth question.

5. I am satisfied that the applicant does not meet the requirements for the payment of the special or the intermediate rates of pension because he fails to satisfy the terms of

   
   

   s 24(1)(c) or s 23(1)(c), respectively, of the Act.

   DECISION

6. The Tribunal affirms the decision under review.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member

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Associate

Dated 11 April 2014

Date of hearing	3 March 2014
Date final submissions received	2 April 2014
Counsel for the Applicant	Michael Lawrence
Solicitor for the Applicant	John Cockburn, Cockburn Legal
Solicitor for the Respondent	Bruce Williams, Department of Veterans' Affairs