Graham Abbott and Repatriation Commission

Case [2012] AATA 895

[2012] AATA  895

Division VETERANS' APPEALS DIVISION

File Number

2011/2510

Re

Graham Abbott

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President DG Jarvis and
Lt Col B Ormston (Retd)
Date 19 December 2012
Place Adelaide

The decision under review is affirmed.

......................[Sgd]..................................................

Deputy President DG Jarvis

CATCHWORDS

VETERANS' ENTITLEMENTS - Disability pension - rate of pension payable - special rate - held that applicant not prevented from continuing to undertake past remunerative work by his war-caused conditions alone - decision under review affirmed.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth), s 24(1)(c)

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534

Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission [1997] FCA 564
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McDonald v Director-General of Social Security (1984) 1 FCR 358
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Van Heteran (2003) 75 ALD 703

Starcevich v Repatriation Commission (1987) 18 FCR 221

REASONS FOR DECISION

Deputy President DG Jarvis and
Lt Col B Ormston (Retd)

19 December 2012

INTRODUCTION

  1. The applicant, Graham Abbott, served in the Australian Army between March 1957 and April 1987.  He had operational service in Vietnam from 18 February 1969 to 4 February 1970.  He has a number of disabilities that have been accepted as service related.

  2. On 2 July 2007, he lodged an application for an increase in pension.  His application referred to two disabilities, namely pain in both knees and lower back pain, and the supporting details completed by a general practitioner referred to diagnoses of osteoarthritis in both knees and the lower back.[1]  We deduce from the documents before us that a delegate of the Commission decided in March 2008 that L5/S1 spondylolisthesis from which Mr Abbott suffers was not related to service, but that his pension should be increased to 100% of the general rate with effect from 2 April 2007.  Following an appeal to the Veterans’ Review Board (VRB), the VRB decided in June 2009 to affirm the Commission’s decision that the L5/S1 spondylolisthesis was not related to service, to vary its decision by amending the diagnosis of L5/S1 spondylolisthesis to include lumbar spondylosis, and to set aside the Commission’s decision in relation to lumbar spondylosis and substitute a decision that that condition was war-caused.  The VRB then remitted the matter to the Commission for assessment of the rate of pension to be paid.

    [1] Exhibit R2, T3, page 13.

  3. It further appears that in September 2009 the Commission decided to maintain its assessment of the rate of pension at 100% of the general rate.  That decision was affirmed by the VRB in May…

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Details
AGLC
Graham Abbott and Repatriation Commission [2012] AATA 895
Case
[2012] AATA 895
Decision Date

CaseChat Overview and Summary

The case of Graham Abbott and the Repatriation Commission was brought before the tribunal to determine whether Mr Abbott qualified for a pension under the provisions of the Veterans' Entitlements Act 1986 (VE Act). The tribunal had to decide if Mr Abbott, due to his war-caused injuries, was prevented from continuing his remunerative work and if he had genuinely sought employment after ceasing his previous work. The key issues were whether Mr Abbott was incapacitated solely by his war-caused injuries, and if he had genuinely attempted to find new employment after his previous job ended.

The tribunal examined the evidence presented by Mr Abbott and the medical reports to determine the extent of his injuries and their impact on his ability to work. The tribunal found that Mr Abbott had not made a genuine effort to find new employment after his previous job ended, as he had only looked for work in a limited area and did not consider the possibility of working outside that area. Additionally, the tribunal concluded that Mr Abbott's decision not to seek further employment was influenced by factors unrelated to his war-caused injuries, such as age and lack of transportation. The tribunal also noted that Mr Abbott's primary issue was disc degeneration, which was secondary to his service-related injury but not solely attributable to it.

Based on the evidence and the tribunal's analysis, it was determined that Mr Abbott did not meet the criteria for a pension under s 24(1)(c) of the VE Act. The tribunal found that Mr Abbott had not been genuinely seeking remunerative work and that his decision to stop working was influenced by factors unrelated to his war-caused injuries. The tribunal affirmed the decision under review, concluding that Mr Abbott was not entitled to a pension under the VE Act.

No further orders were made by the tribunal in this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The principal issues before the tribunal are:(a)whether Mr Abbott satisfies s 24(1)(c) of the VE Act, that is whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and(b)whether he has ceased to engage in remunerative work for reasons other than his incapacity from his war-caused injuries, and so by virtue of s 24(2)(a)(i) of the VE Act is taken not to have suffered a loss of salary or wages, or earnings on his own account, that he would not be suffering if he were free of that incapacity.BACKGROUND FACTS The following background facts are based on the evidence of Mr Abbott and on the documentary material before us. Mr Abbott is aged 62. As at the date of his application to this tribunal he had a number of disabilities which had been accepted as service related, namely non-melanotic malignant neoplasm of the skin, alcohol abuse, post-traumatic stress disorder (PTSD), bilateral tinnitus, osteoarthritis affecting both knees and lumbar spondylosis. He was also suffering a non-accepted condition, namely spondylolisthesis at the L5/S1 level. During the period prior to and for some time after he ceased work he was also suffering from another non-accepted condition, namely a Dupuytren’s contracture of the ring and little fingers of the right hand; his two fingers had gradually been assuming a claw-like position over a period of about four to five years. He had an operation to correct this condition on 22 October 2008.[2][2] Exhibit A7, paragraph 2. He attributed his back problems to an injury which he sustained in 1974 when he was kicked in the back while playing football for the Army, and which resulted in his being hospitalised for seven or 14 days.[3] He has had problems with his back ever since then. He is unable, because of the condition of his knees, to manage stairs without using a handrail, and he finds it difficult to pick himself up off the ground. He has had physiotherapy for his back, and now has an altered gait as a result of his back pain.[3] Compare the history obtained by Mr A J Munyard in exhibit A4 with Mr Abbott’s oral evidence.Applicant’s employment after discharge Mr Abbott gave the following evidence as to his employment after he was discharged from the Army in 1987. He first worked at the Mount Barker Meat Works undertaking general duties until about 1990, and then until 1991 he was employed at Barker Food Processing, also undertaking general duties. From 1991 until about June 2004, except for a period from 1996 to 1997 when he worked as a manual labourer at a quarry, he was employed in hotels as a barman or bar manager at two hotels in Mount Barker and later at a hotel at Stirling North, a town in the mid-north of South Australia. He worked in this last position as a bar manager for a period which he described variously as about six or 12 months,[4] and resided at the hotel on weekdays. He worked from 10 am to 8 pm, five days a week. He left this employment when the hotel changed hands and the new owners employed other managers, and he was no longer required.[4] Compare Mr Abbott’s witness statement, exhibit A1, paragraph 17, with his oral evidence.

Evidence

Evidence Before The Court

In his witness statement, Mr Abbott said that he spoke to a few other people who ran hotels and bars in the Mount Barker area to see whether they had any work for him, but that those potential employers were unwilling to take him on due to his physical restrictions. He added that he could not recall the names of the hotels and bars that he enquired at.[6] In cross-examination, he said he looked around for work in Mount Barker, but there were only three hotels in the area, and he did not look for work outside Mount Barker. When asked why he had not looked further for work, he said that it was very hard to get to places without a car; his own car had been written off when he was still working at the Stirling North hotel, and he did not have the money to buy another car. He also said that after the age of about 55 prospective employers do not want to employ people, and he knew that because a couple of hotels around Mount Barker had hinted that, and that a lot of places only want younger people for about 15 to 20 hours per week.[6] Exhibit A2, paragraphs 1 and 2.Medical evidence An orthopaedic surgeon, Mr A J Munyard, examined Mr Abbott in January 2009 and provided a report to the RSL dated 27 January 2009.[7] He examined Mr Abbott again at the request of his solicitors in March 2012, and arranged relevantly for an MRI of the lumbar spine. He then reviewed Mr Abbott again in May 2012, and provided a report dated 24 May 2012 to Mr Abbott’s solicitors.[8][7] Exhibit A3.[8] Exhibit A4. In his first report, Mr Munyard noted that x-rays of the lumbar spine showed Grade 2 L5/S1 spondylolisthesis with bilateral pars into interarticulares defects, apparently reported to be a long-standing feature and present in a lumbar spine x-ray report of 1 February 2003. Mr Munyard also observed narrowing of the L5/S1 disc space indicating disc degeneration. He referred to the history of injury to the back in 1974 and the ongoing problems in the back since then, and thought that the problems were service related. When requesting the second report from Mr Munyard, Mr Abbott’s solicitors asked him to consider the relevance of the lumbar spondylolisthesis condition to Mr Abbott’s back pain and limitations. In his resulting report, Mr Munyard advised that the radiological investigations revealed a Grade 1 spondylolisthesis, and evidence of disc degeneration at the same level. He continued:Mr Abbott has spondylolisthesis with degeneration at the same level. I believe this latter is the cause of his ongoing difficulties with his lumbar spine. The lumbar spondylolisthesis is probably having a low impact on his current back symptoms. I feel that it is more his disc degeneration causing the problem at the present moment but it is secondary to the injury sustained in 1974. Mr Munyard confirmed in evidence that in his opinion, the spondylosis was responsible for the majority of the symptoms and problems, and added that this would be causing more than 90%, or very close to 100%, of Mr Abbott’s problems. He added that the degeneration is gradually increasing and getting worse, and the amount of pain would also be increasing, and that in his opinion, it was the spondylosis that caused Mr Abbott to stop work. He also considered that the presence of the spondylolisthesis would have made that level of the spine more susceptible to injury, and would have increased the likelihood of degenerative change.

Decision

Reasons for decision

Section 24(2)(b) enables a veteran to satisfy the requirements of s 24(1)(c) if he or she has been “genuinely seeking” to engage in remunerative work. We have referred above to Mr Abbott’s lack of effort to obtain employment after he ceased to work as a cleaner. We find that Mr Abbott has not been genuinely seeking to engage in remunerative work during the assessment period, and so he does not meet the criteria in s 24(2)(b). We consider that the case relied upon by Mr Floreani in support of this aspect of his argument, Leane v Repatriation Commission,[32] is clearly distinguishable on its facts from the present case.[32] (2004) 81 ALD 625.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

If s 24(1) of the VE Act applies Mr Abbott is entitled under s 24(4) to a pension at the special rate therein provided. Sections 24(1)(c) and 24(2)(a) and (b) of the VE Act provide as follows:24(1) This 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 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):(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.CONSIDERATION In considering the application of s 24(1)(c) of the VE Act, we refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission.[10] Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions: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?[10] (1997) 48 ALD 1 at 4-5. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities.[11] Neither party has an onus of proof (s 120(6) of the VE Act), and the tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities.[12] We also bear in mind that it nevertheless remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist, since as a matter of common sense, if there is no such evidence, the finding cannot be made.[13][11] Repatriation Commission v Smith (1987) 15 FCR 327.[12] s 119(1)(g) of the VE Act.[13] McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.