Glossop and Repatriation Commission (Veterans' entitlements)
[2017] AATA 1166
•28 July 2017
Glossop and Repatriation Commission (Veterans' entitlements) [2017] AATA 1166 (28 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3920
Re:James Glossop
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member T Tavoularis
Date:28 July 2017
Place:Brisbane
The decision under review is affirmed.
.......................[sgd]............................................
Senior Member T Tavoularis
CATCHWORDS
VETERANS’ AFFAIRS – application for the Special Rate of pension – where Applicant was assessed as entitled to disability pension at 100% of the General Rate – where Applicant had a number of accepted and non-accepted conditions – Veterans’ Entitlements Act 1986 section 24 – “alone test” – whether Applicant satisfied the “alone test” – section 24(2)(b) – “ameliorating provisions” – whether ameliorating provisions applied to Applicant – Intermediate Rate of pension – whether Applicant eligible for pension at the Intermediate Rate – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 23, 24, 28, 120
CASES
Benjamin and Repatriation Commission
[2000] AATA 680
Benjamin v Repatriation Commission[2001] FCA 1879
Flentjar v Repatriation Commission (1997) 26 AAR 93
Repatriation Commission v Hendy(2002) 76 ALD 47
Repatriation Commission v Richmond[2014] FCAFC 124
Servis v Repatriation Commission[1995] FCA 1137
Smith v Repatriation Commission [2014] FCAFC 53SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016)
REASONS FOR DECISION
Senior Member T Tavoularis
28 July 2017
INTRODUCTION
On 12 August 2015, James Glossop (“the Applicant”) was awarded a disability pension in respect of a psychiatric condition.[1] The Repatriation Commission (“the Respondent”) accepted the following conditions as service-related under the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”):[2]
(a)Post Traumatic Stress Disorder;
(b)Major Depressive Disorder; and
(c)Alcohol Abuse.
[1] Exhibit 3, T documents, T 26, pp 121-126.
[2] Ibid, p 123.
On that basis, the Respondent further found the Applicant was entitled to disability pension at 100% of the General Rate.[3]
[3] Ibid, p 126.
The Veterans’ Review Board (“VRB”) reviewed the component of the Applicant’s entitlement as it related to 100% of the General Rate and on 17 June 2016, made a reviewable decision affirming the Applicant could continue to receive disability pension at 100% of the General Rate, as opposed to the Special Rate.[4]
[4] Ibid, T 41, pp 170-178.
The Applicant now seeks review of the VRB’s reviewable decision dated 17 June 2016. It is this application, filed on 26 July 2016, which is presently before the Tribunal.[5]
[5] Ibid, T 2, pp 3-12.
Before commencing my consideration of this matter, it is instructive to fully list the Applicant’s conditions that have and have not been accepted by the Respondent. The following conditions have been accepted by the Respondent as related to the Applicant’s service:[6]
[6] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), p 2, [9].
(a)Fracture proximal phalanx right thumb;
(b)Mallit deformity right ring finger;
(c)Meniscal tear left knee;
(d)Lumbar spondylosis;
(e)Bilateral tinnitus;
(f)Sensorineural hearing loss;
(g)Colorectal adenomatous polyp;
(h)Contusion of the right ankle;
(i)Non-melanotic malignant neoplasm of the skin;
(j)Solar keratosis;
(k)Post traumatic stress disorder;
(l)Major depression;
(m)Alcohol abuse.
It is apparent that the Applicant suffers from a number of other conditions which have not been accepted by the Respondent. The Respondent drew the Tribunal’s attention to the following non-accepted conditions:[7]
(a)Tinea of the skin;
(b)Sleep apnoea;
(c)Allergic rhinitis;
(d)Chronic sinusitis;
(e)Gastro-oesophageal reflux disease.
[7] Ibid, p 2, [10].
ISSUES FOR THE TRIBUNAL
The principal issue for the Tribunal is whether the Applicant satisfies the requirements of s 24(1) of the VEA and thus qualifies for the Special Rate of pension. To be eligible for this, the Applicant must satisfy the “threshold question” of s 24(1)(aa): he must have lodged a claim or application for pension at the Special Rate. The Applicant clearly satisfies the threshold question.[8]
[8] Exhibit 3, T documents, T 26, p 121.
If the response to this initial threshold question is in the affirmative, a series of questions must subsequently be addressed. They comprise:
(a)Was the Applicant aged under 65 when the claim was made, as required by s 24(1)(aab) of the VEA?
(b)If so, is the Applicant totally and permanently incapacitated from working more than 8 hours per week from the commencement of the “assessment period”, as a result of the physical and/or psychiatric impairments resulting from his accepted war-caused injury or war-caused disease (or both), pursuant to s 24(1)(b) of the VEA?
(c)If so, do any of the Applicant’s conditions resulting from his accepted war-caused injury or war-caused disease, or both, alone, prevent him from continuing to undertake work from the commencement of the assessment period, and thus suffering a loss of salary and wages that he would not have suffered, but for that incapacity, sufficient to meet the requirements of s 24(1)(c) of the VEA?
(d)Do the ameliorating provisions of s 24(2)(b) apply, such as to satisfy the “alone test” relevant to the Applicant’s compliance with s 24(1)(c) of the VEA?
(e)If so, two further questions arise:
(i)Would the Applicant have continued to engage in remunerative work or seek remunerative work, but for the incapacity caused by his accepted conditions? and;
(ii)If so, was such incapacity the substantial cause of the Applicant’s inability to obtain remunerative work?
(f)As an alternative scenario, consideration must be given to whether the provisions of s 23 of the VEA apply, such that the Applicant would be entitled to Intermediate Rate of pension (rather than the General Rate).
CONSIDERATION
Preliminary Items
Standard of Proof
Section 120(4) of the VEA provides that any assessment or re-assessment of the rate of pension must be decided by the Tribunal to its reasonable satisfaction.
Assessment Period
The Applicant must satisfy the criteria in s 24 of the VEA to qualify for a pension at the Special Rate. In addition, these criteria must be met at some time during the “assessment period”, which, for present purposes, runs from the date on which the Applicant’s claim for acceptance of his psychiatric condition and application for increase in pension rate were received by the Respondent (18 March 2015),[9] and concludes when this application is determined by the Tribunal.
The Application of the Criteria in Section 24 of the VEA
[9] Ibid.
Section 24(1)(aa)
The Respondent concedes (correctly, in my view) that the Applicant has lodged (1) an application under s 15 of the VEA for an increase in the rate of pension, together with (2) a claim dated 17 March 2015 for a psychiatric injury.[10]
[10] Exhibit 2, Respondent’s SFIC, p 9, [7].
Section 24(1)(aab)
The Respondent further concedes (correctly, in my view) that the Applicant was 63 years of age when the abovementioned application and claim were received on 18 March 2015.[11]
[11] Ibid.
Section 24(1)(a)
The Respondent also correctly accepts the Applicant’s incapacity from war-caused injury is recorded in a determination that is in force entitling him to payment of disability pension at 100% of the General Rate, that being above the 70% of the General Rate threshold.[12]
[12] Ibid, p 9, [8].
Section 24(1)(b)
The question for the purposes of this sub-section is whether the Application’s accepted conditions prevent him from undertaking remunerative work for 8 hours a week.
The guiding provision for assessing an applicant’s incapacity to meet the requirement under s 24(1)(b) of the VEA is s 28. Section 28 limits the scope of the assessment to:
(a)That applicant’s vocational, trade and professional skills, qualifications and experience;
(b)The kinds of work which a person with that applicant’s skills, qualifications and experience might reasonably undertake; and
(c)The degree to which that applicant’s accepted conditions have reduced their capacity to undertake remunerative work of the type contemplated by paragraph (b).
The Respondent accepts that, for the purposes of claiming payment of disability pension at the Special Rate, the Applicant satisfies the requirements of s 24(1)(b) of the VEA. I agree with that concession.[13]
[13] Ibid, p 10, [16].
Section 24(1)(c)
Section 24(1)(c) provides:
1This section applies to a veteran if:
…
(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 and wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity…
The Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 (“Flentjar”) at 96[14] identified four issues to guide a decision-maker as to whether the “alone test” had been satisfied:
(a)What was the relevant “remunerative work that the veteran was undertaking”, within the meaning of s 24(1)(c) of the VEA Act?
(b)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(c)If the answer to (b) 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?
(d)If the answers to questions (b) and (c) 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?
[14] Per Branson J, with whom Beaumont and Merkel JJ agreed.
The learned Appeal Court Judges in Flentjar were of the view that question (d) necessitates a finding of what type of remunerative employment an applicant would have performed, but for their accepted conditions. This question, in turn, requires a decision-maker to “take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.”[15] Factors such as work done by the Applicant before the assessment period, any lack of work experience and increasing age were regarded by the Court in Hendy as being relevant considerations:
The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.[16]
[15] Repatriation Commission v Hendy (2002) 76 ALD 47 (“Hendy”) at [37].
[16] Ibid.
The relevant “remunerative work that the [Applicant] was undertaking” within the meaning of s 24(1)(c) of the VEA saw him employed as a reservist performing administrative work. It appears that his civilian employment history has seen him employed as an engineer in the mining industry.[17]
[17] Exhibit 14, Dr Nankervis’ Report dated 13 July 2012. Please note that although not exhibited at the Hearing, the Tribunal was minded to enter the report as an exhibit due to its extensive quotation in Exhibit 2, the Respondent’s SFIC at p 6, [37] and relevance to this issue.
I note that Buchanan J in Smith v Repatriation Commission [2014] FCAFC 53 (“Smith”) warned against following the Full Court’s approach in Flentjar in a proscriptive way.[18] It is nevertheless instructive as to how a decision-maker may approach a s 24(1)(c) of the VEA.
[18] Smith v Repatriation Commission [2014] FCAFC 53, [45].
Is the Applicant’s loss of remunerative work attributable to his service-related incapacities alone, or is that loss attributable to something else as well? Crucially for present purposes, any factor having employment consequences which plays a part in the Applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace his case for pension at the Special Rate.[19] In other words, the Applicant must demonstrate, to the reasonable satisfaction of the Tribunal,[20] that his demonstrated loss of earnings is the direct result of his service-related incapacities and only for that reason.
[19] Exhibit 2, Respondent’s SFIC, p 10, [18] citing Cavell v Repatriation Commission [1988] FCA 464..
[20] Section 120(4) of the VEA.
It was contended on behalf of the Respondent (in my view, correctly) that there are two limbs to s 24(1)(c):[21]
(a)It is necessary for the Applicant to demonstrate that he “… 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 [he] was undertaking”; and
(b)That the Applicant “is, by reason thereof, suffering a loss of salary or wages, or of earnings, on his… own account, that [he] would not be suffering if [he] were free of that incapacity.”
[21] See Exhibit 2, Respondent’s SFIC, p 11, [20]. See also Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016), [24.05].
In applying the first limb of s 24(1)(c) of the VEA, the critical assessment is to ascertain whether the Applicant’s war-caused incapacity alone prevents him from being able to undertake the work he had been previously engaged in. In the event that there are other, non war-caused factors contributing to him not being able to engage in that work, even if they are only of secondary importance and not of themselves sufficient to prevent the Applicant from engaging in his remunerative work, the presence of those factors of secondary importance will be sufficient to deny the Applicant eligibility for the Special Rate of pension.[22]
[22] See Exhibit 2, Respondent’s SFIC, p 11, [23], citing Repatriation Commission v Richmond [2014] FCAFC 124.
The configuration of the “alone test” in s 24(1)(c) is not such that other factors, of themselves, should, if taken into account, be found to prevent the Application from engaging in remunerative work. For present purposes, the Tribunal must look at any factor that “…plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.”[23]
[23] Repatriation Commission v Richmond [2014] FCAFC 124.
In the present application, an admittedly brief period of time has elapsed since the Applicant ceased remunerative work, and before the commencement of the assessment period. He has spent an amount of time out of the workforce and he can be regarded as being of increasing age – that is, of an age where his employability is not as attractive to prospective employers. These are factors that the Tribunal must consider and weigh, in addition to any other relevant factors applicable during the assessment period.
The Tribunal is especially mindful of the importance of making the assessment mentioned above because any conclusions resulting therefrom are not reviewable, save and except in exceptional circumstances.
The Respondent propounds the contention (with which I agree) that there are indeed other extant factors that speak directly to the Applicant’s employability for the duration of the assessment period, which cause him to be unable to satisfy the “alone test”.[24] Those factors can be stated thus:
·His age;
·The impact of other, non-accepted conditions:
oSleep apnoea;
oChronic rhinitis; and
oSinusitis.
[24] Exhibit 2, Respondent’s SFIC, p 12, [28]-[29].
The Applicant is currently 65 years of age. He was aged 63 years when the assessment period began. There is little doubt that an applicant’s age is indeed a factor of sufficient weight either contributing to, or by itself, capable of adversely affecting or preventing an applicant’s employability. The Respondent’s resulting contention is therefore correct: it cannot now be said that the Applicant’s war-caused disabilities alone preclude him from engaging in remunerative employment.
The Applicant has spent the significant majority, if not all, of his working life with the Navy. His final employment arrangements with the Navy concluded in February 2015, when his employment contract was not renewed. Upon ceasing work with the Navy on 1 February 2015, the Applicant then filed an application for Special Rate pension in March 2015. As I have understood the evidence, he has not performed, nor received any offers for, any kind of remunerative work since he finished working for the Navy.
He acknowledges his bleak employment prospects when answering an employment questionnaire on 27 April 2015. In response to the question “14. If you work/worked less than full-time, what was the reason for this?”, the Applicant responded “No work now – at 63 – probably unemployable”. In response to the question “18. If currently unemployed, what do you believe is preventing you from being employed?”, the Applicant responded with, inter alia, “Age”.[25]
[25] Exhibit 3, T documents, T 13, p 75.
Question 17 of the abovementioned employment questionnaire variously asks the Applicant to provide details of when he last registered or applied for work, where he did so, and what attempts he made to find work. His responses involved a cursory and unconvincing reference to “Seek.com”, and/or “Reserves website”. Tellingly, in response to the request “please provide copies of responses to job applications etc.”, the Applicant responded with “None received”.[26]
[26] Ibid.
At the hearing, and in the documents, there was evidence about the reasons for the non-renewal of the Applicant’s contract with the Navy in February 2015. One of the issues arising from that non-renewal involved certain behavioural issues, specifically an incapacity to control his temper. This is acknowledged by the Applicant in his response to question 16 of the employment questionnaire. He is asked: “16. If you are not currently working, why did you cease employment?”, to which the Applicant replied “my contract expired & despite handshake deal for ongoing work – Navy reneged on deal – I was told this was due to my behavioural issues – temper”.[27]
[27] Ibid.
In considering this issue, the Tribunal is mindful of due fairness being afforded to an applicant in circumstances where he is unreasonably or, indeed, unlawfully, denied employment. The Tribunal is not compelled to look behind the evidence (for example, the Applicant’s answers to the employment questionnaire) to identify any other real, or more specific reason for the Applicant ceasing work.[28] On the balance of the evidence before me, it is apparent that it is more than merely the Applicant’s accepted conditions that have prevented him from regaining employment.
[28] Benjamin and Repatriation Commission [2000] AATA 680. This view was not dissented from on appeal: Benjamin v Repatriation Commission [2001] FCA 1879.
The Applicant has a significant list of conditions that have been accepted as war-caused. It is therefore difficult for the Respondent to maintain an argument that the non-accepted conditions, by themselves, have a greater preventative effect on the Applicant’s ability to engage in remunerative employment than his accepted conditions. But that is not what is contemplated by the “alone test”. Rather, it is sufficient for the Respondent to establish that the non war-caused conditions are contributory to the Applicant being unable to engage in remunerative work, even if they are only of secondary importance and not, of themselves, sufficient to prevent him from engaging in such work.
I think there is evidence to support the contention that the non war-caused conditions are contributory in this way. Dr Richard Nankervis, a sleep and respiratory physician, provided a report dated 13 July 2012, which appears in the summonsed documents from Dr Greg Anderson, and which is referenced in the Respondent’s SFIC.[29] Although not exhibited at the Hearing, the Tribunal was minded to enter the report as an exhibit due to its extensive quotation in the Respondent’s SFIC and relevance to this issue. Dr Nankervis’ report appears to have been written relatively shortly after the Applicant’s involvement in a motor vehicle collision. It seems the collision occurred when the Applicant was working and was at least partly attributable to the Applicant’s inability to use his CPAP device for his sleep apnoea condition.[30]
[29] Exhibit 2, Respondent’s SFIC, p 6, [37].
[30] Exhibit 14.
Dr Nankervis said “…on one night when his nasal congestion prohibited him from using his CPAP he had a car accident the next day associated with work. He works as an engineer in the mining industry and has a shift cycle of 15 days on and 6 days off often with a 10 hour day and without any nightshift work. His work does require him to drive quite frequently for more than 3 hours at a time. This in itself is going to place him in increased risk of a car accident.”[31]
[31] Ibid.
Dr Nankervis further identified the Applicant’s pre-existing non-accepted conditions of “allergic rhinitis” and “gastroesophageal reflux”. He made a couple of recommendations. First, he said “…My recommendation is that we need to consider that driving should be prohibited on days where he is unable to use his CPAP…”. Second, he said “…it would be prudent to organise a review at least on a yearly basis to ensure compliance and to trouble shoot any mask issues and to reassess whether a repeat titration is going to be required some time down the track.”[32]
[32] Ibid.
Dr Graham Altman is a consultant psychiatrist. He has provided three reports in this matter. His first report, dated 7 January 2015, is primarily concerned with establishing a diagnosis of post-traumatic stress disorder with associated major depression and alcohol abuse.[33] Each of these conditions has been accepted as war-caused. His second report is dated 10 September 2015.[34] It, too, is primarily concerned with the Applicant’s psychiatric conditions, but also makes reference to an orthopaedic condition – back pain – being a significant cause of the Applicant’s inability to work.[35] On the assumption that it relates to the Applicant’s accepted lumbar spondylosis condition, this back pain is one of the accepted conditions.
[33] Exhibit 3, T Documents, T 8, pp 44-47.
[34] Ibid, T 28, pp 129-130.
[35] Ibid, p 130.
Dr Altman also provided a third report, dated 15 November 2016,[36] which is, to my mind, his most relevant report for the purposes of s 24(1)(c) of the VEA. Dr Altman provided this report in response to a letter of request from the Applicant’s legal representatives.[37] The undeniable purpose of this letter is to obtain an opinion from Dr Altman such as to remove any connection whatsoever between the abovementioned non-accepted conditions and their effect on the Applicant’s capacity to engage in remunerative employment. This is not how things transpired in Dr Altman’s report.
[36] Exhibit 12.
[37] Ibid.
Curiously, Dr Altman seemed to be simultaneously definitive but also equivocal on the issue. He said “In my opinion none of the disabilities you have listed in your above mentioned (sic) letter dated 14 November 2016 (… Sleep Apnoea, Allergic Rhinitis, Chronic Sinusitis… ) is likely to cause Mr Glossop to become permanently unfit for work.” Dr Altman then became equivocal and saying “Some of those conditions may result in him having an occasional day off work (or possibly a few days off work) which is common to many medical conditions”.[38]
[38] Ibid.
The Applicant has produced a report from Dr Suvenesh Prasad, Consultant Physician Respiratory and Sleep Medicine dated 7 December 2016.[39] In a marked departure from each of the abovementioned reports, while acknowledging the diagnosis of obstructive sleep apnoea, the ongoing use of the CPAP mask and ongoing snoring issues for the Applicant even while wearing that mask, such that the mask must be applied with “slightly higher pressure”, Dr Prasad nevertheless makes some extraordinary findings which are, to my mind, at odds with the earlier medical evidence.
[39] See Exhibit 6.
Dr Prasad thinks the Applicant “…has no driving issues”, and that the Applicant “…has no daytime tiredness or other sleepiness... to report.” He also thinks the Applicant, in using his CPAP mask, is exhibiting “…excellent compliance and excellent symptom control”, although the only evidence of this aside from the Applicant’s self-reporting were some 9 months of data across the three years from 2014-2016.[40] He was not called to give evidence at the hearing, and one can only speculate about the legitimacy of these findings in circumstances where:
·Dr Nankervis had previously found that the Applicant’s sub-optimal use of his CPAP mask was a direct contributory cause of a work-related motor vehicle accident and that the Applicant should not be driving on days where he is unable to use his CPAP, and should otherwise limit his driving distance and require him to take breaks;[41]
·Dr Altman (albeit as a consultant psychiatrist) identifies the sleep apnoea condition and concludes that it could very well interfere with the Applicant’s ability to engage in remunerative employment; and
·It is apparent that Dr Prasad only had access to limited information aside from the apparently unreliable self-reporting of the Applicant.
[40] Exhibit 6.
[41] Exhibit 14.
I have considered each of these reports and find that the non-accepted conditions, while not of themselves sufficient to prevent the Applicant from engaging in remunerative employment, are nevertheless factors that contribute to him not being able to do so. I find that these non-accepted conditions do play a part in, or otherwise contribute to, the Applicant’s prevention from continuing to engage in remunerative work.
Further, the evidence points to market forces as another factor mitigating against the Applicant having his employment contract with the Navy renewed and subsequently finding other employment. Towards the end of his tenure with the Navy, even his immediate supervisor, Lieutenant Commander P G O’Hara, noted that the Applicant was an “excellent member of the team during [the] period” of his employment with the Navy. Lieutenant Commander O’Hara added “I would not hesitate to reemploy (sic) him should the opportunity arise”.[42] Unfortunately for the Applicant, it appears that, due to market forces, this opportunity never did arise.
[42] Exhibit 9.
In light of this, frankly, glowing review of the Applicant and its silence about his departure from the Navy due to any medical condition (accepted or otherwise), I accept the Respondent’s contention at the hearing that other primary factors mitigated against the Applicant’s continuing employment with the Navy:
(a)As a Chief Petty Officer, he would have reached the compulsory retirement age of 65 years in February 2017. His compulsory retirement date was thus imminent;[43]
(b)Given the Applicant’s age and skillset, it is probable there may simply not have been work available of the type that he was either qualified to then do, or that he had done in the past. Navy Accommodation Manager Les Westbrook noted that while trying to assist the Applicant to find work with the Navy, “I was continually given the same scenario; due to budgetary restraints etc etc, Navy are not hiring full time reservists, in particular those from interstate.”[44] Similarly, Commander Dina Kinsman noted that “…where there is a change in employment environment, consideration is to be given as to the functional capacity of CPO Glossop to perform specific tasks and duties.”[45]
[43] Exhibit 3, T Documents, T 41, p 177.
[44] Exhibit 11.
[45] Exhibit 10.
To my mind, these two reasons weigh heavily against the proposition, propounded by the Applicant, that his war-caused injuries are the substantial cause of his inability to obtain remunerative work. Rather, it appears that a litany of other reasons, from his age and his skillset to a hiring squeeze within the Navy and economic forces all contributed to the fact he could not find work, particularly within the Navy. I note that this is the main area where the Applicant sought employment.
I therefore agree with the Respondent’s contention that the extant factors of the Applicant’s age, market forces, and the impact of the non-accepted conditions (sleep apnoea, chronic rhinitis and sinusitis) do speak directly to the Applicant’s employability for the duration of the assessment period, such as to cause him to be unable to satisfy the “alone test”.
Consequently, I find the Applicant is not entitled to payment of disability pension at the Special Rate by virtue of his failure to satisfy the “alone test” under s 24(1)(c).
Do the Ameliorating Provisions Apply?
The Applicant sought to argue that s 24(2)(b) of the VEA, which operates in some circumstances to ameliorate the conclusion that s 24(1)(c) is not satisfied, has application here. The Respondent contends (and I agree with this contention) that this provision does not undermine the operation and applicability of s 24(1)(c) of the VEA.[46] It instead provides an alternative method for an applicant satisfying s 24(1)(c).
[46] Exhibit 2, Respondent’s SFIC, p 13, [33].
To successfully apply the provisions of s 24(2)(b), the Applicant must demonstrate that he was genuinely seeking to engage in remunerative work since he ceased employment in February 2015. To meet that threshold, the Applicant says that on various dates in 2015, he attempted to find work.[47] In support of this contention, the Application has filed one item of evidence, Exhibit 13, comprising a letter from NORTEC Staffing Solutions, dated 30 January 2017. In that letter, NORTEC said the Applicant registered with them on 2 November 2015 and ceased any further involvement with them on 1 May 2016.[48]
[47] Exhibit 8.
[48] Exhibit 13.
Although the Applicant was not engaged in remunerative employment at the commencement of the assessment period, the ameliorating provisions of s 24(2)(b) of the VEA can nevertheless be found to apply in circumstances where three specific matters are satisfied. The Applicant must demonstrate:
(a)He has been genuinely seeking to engage in remunerative work;
(b)But for the incapacity caused by the war-caused injuries, he would be continuing to seek to engage in remunerative work; and
(c)The war-caused injuries are the substantial cause of his inability to obtain remunerative work.
The Respondent has, to my mind, correctly noted that the decision of Smith is not only concerned with an applicant who has not remuneratively worked at all since leaving military service or becoming incapacitated. The principles of Smith require the Tribunal to assess whether the Applicant can demonstrate that all of his genuinely-made efforts to obtain employment have been rendered nugatory by his accepted conditions. Specifically, the Applicant must demonstrate: (1) that he would continue to try and find remunerative employment, but is precluded from doing so as a result of his accepted conditions; and (2) the incapacity(ies) resulting from those accepted conditions is the substantial cause of his inability to obtain work.[49]
[49] See Respondent’s SFIC, pp 13-14, [36] citing Smith.
Despite the Applicant’s efforts to obtain remunerative work, I cannot reasonably accept that the Applicant’s accepted conditions comprise the substantial or significant cause of his inability to obtain employment. As I noted above, despite the Applicant’s active pursuit of further employment in the Navy, none was forthcoming due to, as best as I can tell, a hiring “squeeze”. Because of this, and the other relevant factors that prevent the Applicant from satisfying the “alone test”, and with no evidence before me as to the weight employers put on any of these factors, I simply cannot find that the Applicant’s accepted conditions were the substantial or significant cause of his inability to work. It follows that s 24(2)(b) cannot apply here.
Further, I am unconvinced that the Applicant has suffered a loss of salary or wages that he would not be suffering if he were free from his incapacity. The best evidence before me points to the conclusion that the source of the Applicant’s loss of salary or wages was his contract not being renewed and then his inability to find new employment. Although being made redundant is undoubtedly an unfortunate experience, I am not convinced that the Applicant could have prevented this if he were free from his impairments, particularly in circumstances where there is no real evidence that the Applicant’s impairments were the cause of his contract not being renewed. Similarly, as discussed above, there are several other factors that I am satisfied contributed to his inability to find new employment. I am therefore not satisfied that the Applicant has suffered a loss of salary or wages he would not otherwise be suffering if he were free from his accepted war-caused injuries.
In summary of the above, I have found that the Applicant both failed to meet the threshold for the “alone test” and could not avail himself of the “ameliorating provisions” of s 24(2)(b) of the VEA and thus is ineligible for the disability pension at the Special Rate.
Is the Applicant Eligible for the Intermediate Rate of Pension?
To be eligible for the Intermediate Rate of pension, the Applicant must satisfy the provisions of s 23 of the VEA. For present purposes, qualification for Intermediate Rate requires satisfaction of four criteria:[50]
(a)Incapacity from war-caused injuries or diseases assessed to at least 70% of the General Rate (s 23(1)(a));
(b)Incapacity from war-caused injuries or diseases which alone prevents the veteran from working more than on a part-time basis or intermittently. Part-time or intermittent work is defined as work for more than 50% of the time ordinarily worked by someone in that occupation or, if that measure is inappropriate, from working more than 20 hours a week (ss 23(1)(b), s 23(2));
(c)Incapacity from war-caused injuries or diseases which alone has prevented the veteran from working, leading to a loss of salary, wages or earnings (s 23(1)(c)); and
(d)Neither s 24 (pension at the Special Rate), nor s 25 (pension at the Temporary Special Rate) applies (s 23(1)(d)).
[50] Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016),, [23.02].
I note that, as in the case of an application for Special Rate,[51] the use of the word “and” in s 23 is telling: the criteria in s s23(1)(a)-(c) are cumulative. Each of those criteria must be satisfied for a person to qualify for pension at the Intermediate Rate.
[51] Servis v Repatriation Commission [1995] FCA 1137, [35]-[38].
The Applicant must also meet the requirements of ss 23(1)(aa) and 23(1)(aab) of the VEA – he must have made a claim under s 14 or an application under s 15, and have been under the age of 65 at the time the claim or application was made. These requirements have clearly been met.
The Respondent helpfully concedes that the Applicant meets the provisions of s 23(1)(a) of the VEA, specifically s 23(1)(a)(i).[52]
[52] Respondent’s SFIC, [45].
The test under s 23(1)(b) of the VEA again requires satisfaction of the “alone test”. For the reasons outlined above, I do not consider that the Applicant’s incapacity(ies) from war-caused injuries or diseases alone prevent him from working more than on a part-time basis or intermittently. I have identified earlier in these reasons[53] other extant factors or conditions (in addition to the accepted conditions) directly impacting upon the Applicant’s capacity to work full time. I have seen no evidence proving that any one factor alone (including the accepted conditions) prevented the Applicant from working more than on a part-time or intermittent basis. Consequently, I am not satisfied that the Applicant satisfied s 23(1)(b).
[53] Insert para number here [xx]-[xx]
This is my finding on s 23(1)(b) of the VEA, notwithstanding the contemporaneous medial evidence of Dr Anderson noting that, at the commencement of the assessment period, the Applicant was capable of engaging in employment for between 8 and 20 hours per week.[54]
[54] Respondent’s SFIC, [47].
A parallel finding therefore also exists between the provisions of ss 24(1)(c) and 23(1)(c) of the VEA insofar as the establishment of any financial loss for the assessment period is concerned. I have found that the Applicant’s war-caused conditions have not, alone, caused him to suffer a financial loss arising from his inability to work, be it on a full, par-time or intermittent basis.
I am satisfied, for the purposes of s 23(1)(d) of the VEA that neither s 24 (Special Rate), nor s 25 (Temporary Special Rate) applies to the Applicant.
Accordingly, I do not consider the Applicant qualifies for pension at the Intermediate Rate.
CONCLUSION
On the basis of the above, I therefore find:
(a)The Applicant is not entitled to the Special Rate of pension as he does not meet the requirements of s 24(1) of the VEA;
(b)The “ameliorating provisions” in s 24(2)(b) of the VEA do not apply to the Applicant; and
(c)The Applicant is ineligible for the Intermediate Rate of pension as he does not meet the requirements of s 23(1) of the VEA.
Consequently, I find that the Applicant is only entitled to disability pension at 100% of the General Rate.
The decision under review is therefore affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis
...........................[sgd]........................................
Associate
Dated: 28 July 2017
Date(s) of hearing: 30 January 2017 Counsel for the Applicant: Ms Ann Frizelle Advocate for the Applicant: Mr Noel Payne OAM Solicitors for the Applicant: Howden Saggers Lawyers Advocate for the Respondent: Ms Rachel Blake Solicitors for the Respondent: Moray & Agnew Lawyers
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