Grant Sheean and Repatriation Commission
[2014] AATA 594
•22 August 2014
[2014] AATA 594
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5837
Re
Grant Sheean
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 22 August 2014 Place Brisbane The Tribunal affirms the decision under review.
...........................[Sgd]..........................................
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity, intermediate rate – Whether war-caused injury or disease is sole or substantial cause of applicant’s inability to obtain work – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 23, 24
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Leane v Repatriation Commission [2004] FCAFC 83Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
Dr M Denovan, Member
22 August 2014
Mr Grant Sheean is the applicant in these proceedings. He served in the Australian Army for 42 years, and in the last ten years he was employed in the Range safety sector. He discharged on 29 October 2010.
Mr Sheean has a number of medical conditions that have been accepted as war caused: sensorineural hearing loss of the left ear, posttraumatic stress disorder (“PTSD”), lumbar spondylosis, non melanotic malignant neoplasm of the skin, Barrett’s oesophagus, and solar keratosis. He has been in receipt of 100% of the general rate of disability pension from 26 April 2011.
Mr Sheean believes he is entitled to pension at above the general rate. He claims that because of his accepted conditions of PTSD and lumbar spondylosis he became increasingly unwell and as a result he was discharged from the Army. Mr Sheean sought to remain in the Army past his expected retirement age, however he claims his application was denied because of his PTSD.
The respondent contends that Mr Sheean was discharged on the basis of his age, and that he has not made any genuine attempts at seeking employment since that time.
On 25 October 2012 the Veterans’ Review Board affirmed the decision of the Repatriation Commission, which assessed disability pension at 100% of the general rate. Mr Sheean applied for review of the decision by this Tribunal on 21 December 2012.
STATUTORY FRAMEWORK
The requirements, which must be satisfied before the special rate of pension can be paid, are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, and are dealt with under s 24(1) of the Act. For Mr Sheean, who was under 65 years of age when he lodged his claim, to be eligible for special rate he must, amongst other things:
·Have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a));
·be incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)); and
·
the war-caused injury or disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity
(s 24(1)(c)).
A veteran who ceased to engage in remunerative work for reasons other than a
war-caused incapacity, or is unable to engage in remunerative work for some other reason, will not regarded as suffering loss of salary, wages or earnings (s 24(2) of the Act).
Section 19(5C) of the Act adds an additional qualification for assessment. An applicant must meet all of the above criteria at some time within the “assessment period”. The assessment period runs from the date the application was received and ends on the date of determination of this application by the Tribunal.
Section 24(2)(b) is an ameliorating provision that creates a beneficial easing of the impact of the word “alone” in s 24(1)(c). That provision applies where the veteran has not been engaged in remunerative work and, if he or she satisfies the Repatriation Commission of three matters, the veteran is deemed to have met the second criterion in
s 24(1)(c); namely he or she is prevented solely by the effect of the war-caused injury from engaging in remunerative work. To meet the test the Tribunal must be reasonably satisfied that he or she has been genuinely seeking to engage in remunerative work; that but for the effect of the war-caused injury, he or she would be continuing to seek to engage in remunerative work; and the effect of the war-caused injury is the “substantial cause” – and not the sole cause – of the veteran’s inability to obtain such work.
If a veteran who has applied for an increase in the rate of pension under s 15 cannot satisfy the requirements of s 24(1), he or she may still be eligible for a lesser increase under s 23 of the Act. That section operates in respect of a veteran who is not totally and permanently incapacitated within the meaning of s 24(1)(b), but whose incapacity has resulted in him or her being only able to undertake part time or intermittent remunerative work. The relevant subsections in s 23 are subss (1)(b)-(d), (2) and (3).
The parties agreed at the outset of the hearing that Mr Sheean satisfies s 24(1)(aa), (aab) and (a) of the Act, as well as s 24(1)(b) of the Act.
I must decide whether Mr Sheean satisfies the requirements of s 24(1)(c).
CONSIDERATION
Do Mr Sheean’s war-caused injuries or diseases alone prevent him from continuing to undertake remunerative work that he was undertaking, and because of this, is he suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity?
It is usual for decision-makers to approach consideration of s 24(1)(c) of the Act, having regard to the four questions propounded in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 2, as per Branson J (“Flentjar”).
1. What was the relevant work that Mr Sheean was undertaking within the meaning of s 24(1)(c) of the Act?
Mr Sheean first joined the Army in 1968, and was discharged in 1974. He re-joined the Army 18 months later in August 1975 and served for another 35 years. For the last
10 years of his service he was a full time Range Control Officer.
2. Is Mr Sheean, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
Psychiatrist Dr Klug opined that Mr Sheean is unable to work any hours a week due to his PTSD. There is no evidence to the contrary. I find that Mr Sheean is unable to work due to his war-caused PTSD.
3. If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing Mr Sheean from continuing to undertake that work?
Although Dr Klug has opined that Mr Sheean is currently unable to work at all because of PTSD, Dr Klug was not treating Mr Sheean in 2010 when he ceased his last remunerative work. Dr Klug claims that PTSD was the reason for his retirement; however the contemporaneous medical evidence indicates that at the time of his retirement, this condition was not interfering with his capacity to work. In the discharge medical report prepared by BRIG Duncan on 23 October 2010, it was noted that
Mr Sheean required no treatment for his PTSD, and that the condition did not interfere with his functional capacity.
The retirement age in the Army was previously 55 years of age. When Mr Sheean was approaching the age of 55 he wrote a minute applying for extension. His request was granted, and soon after the compulsory retiring age was changed from 55 to 60.
Mr Sheean said when he was approaching 60 years old he applied again. This time his application was refused.
Mr Sheean said that prior to being refused an extension he would put in extra hours at work to make sure everything was safe and sound. There is no suggestion that Mr Sheean had any undue absence from his work for any medical conditions. After being refused an extension, he said he basically lost confidence in what he was doing. From that time he would do his job but he would not put in the extra bit of effort he previously would have done. Mr Sheean has claimed his loss of confidence at this time was as a result of his PTSD. The contemporaneous medical evidence however indicates his work performance dropped after his application for an extension was refused. In a staff in confidence report dated 26 August 2010, his supervisor opined that this drop in performance was due to
Mr Sheean’s extreme disappointment.
In a separation health medical examination report dated 23 October 2010, it was noted that Mr Sheean had bilateral hearing loss and because of this was reclassified (hearing at H7 standard, 1 being the highest stand, 7 being the worst) to a classification of MEC401 (medically unfit for deployment or seagoing service in the long term). Mr Sheean has only left ear hearing loss accepted as a war caused condition. The hearing impairment that resulted in his medical downgrade was bilateral. His medical downgrade was therefore a consequence of a combination of both accepted and non-accepted medical conditions. Mr Sheean continued working until his discharge date, however as a result of the medical downgrade he would not have been able to continue to undertake the work he was previously undertaking had he not already been discharged due to age.
Mr Sheean did not, however, cease his employment because of medical reasons. Although Mr Sheean’s hearing loss would have potentially prevented him from continuing to undertake his military work, this problem was only identified after a decision had already been made to discharge Mr Sheean on the basis of his age. It is clear that up until October 2010, his accepted war caused conditions were not interfering with his capacity to work, with the exception, perhaps, of his left ear hearing loss. In
October 2010, Mr Sheean was prevented from continuing the remunerative work he was previously undertaking due to age, and also due to bilateral hearing loss, a condition that was in part war caused, and in part non-war caused. Although Mr Sheean claims he applied for an indefinite extension, and it was his desire and intention to continue working indefinitely, there is evidence that this was not the case. A staff in confidence report, prepared by his supervisor on 26 August 2010, states that Mr Sheean applied for an extension to his compulsory retirement age, from October 2010 to
December 2011/January 2011, to see out the posting cycle, conduct a proper handover/take-over with his replacement and affect his discharge.
Mr Sheean claims to have intended to work as a safety officer after he discharged from the military. He stated his son worked in the industry and he had hoped to work with his son. On questioning he accepted that his son, who obtained his professional qualifications at university, was performing work he himself was not qualified to do.
Mr Sheean admitted that he would have been required to complete training prior to working with his son. He claims his son sent him information about training courses, but his PTSD symptoms prevented him from completing those courses. In the matter of Forbes v Repatriation Commission (2000) 58 ALD 394, Nicholson J stated at 401:
The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a tribunal of a common sense approach “with an eye to reality”.
… it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
Section 24(1)(c) requires the decision maker to consider what the veteran would have probably done, absent of his service caused illnesses or injuries. As Whitlam, Emmett and Stone JJ said in Repatriation Commission v Hendy [2002] FCAFC 424 at [37]:
If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of work experience, time out of the work force, and increasing age will be relevant for consideration under s 24(1)(c) of the Act.
Having an eye to reality, I consider it unlikely that Mr Sheean would be working at any time in the assessment period, had he been free of his war caused injuries or illnesses.
Mr Sheean was 60 years old at the beginning of the assessment period. He had not worked since his discharge, and a lack of civilian work experience in combination with his age, time out of the work force, the proximity to access to age pension and superannuation benefits and his non-accepted condition of right ear hearing loss are all factors that in combination make it unlikely that he would be working in either a part time or full time capacity. I find that war caused disease or injury alone was not the only reason Mr Sheean ceased to perform the remunerative work he was undertaking.
Although Mr Sheean claims he intended to continue to work in a similar type of employment after discharge, he did not have any employment lined up, and at the time he was discharged he did not have the qualifications to perform the work he said he was contemplating. His age would have made it difficult to establish work in an area he had no experience in, even if he did obtain the qualifications that were required.
The answer to the third Flentjar question is in the negative. Mr Sheean does not meet the legislative requirements of s 24(1)(c), nor does he satisfy the requirements for intermediate rate pension.
Does Mr Sheean satisfy the ameliorating provisions 24(2)(b)?
To meet the test the Tribunal must be reasonably satisfied that he or she has been genuinely seeking to engage in remunerative work; that but for the effect of the war-caused injury or disease he or she would be continuing to seek to engage in remunerative work; and the effect of the war-caused injury is the “substantial cause” – and not the sole cause – of the veteran’s inability to obtain such work.
Mr Sheean claims to have decided to have a break after he discharged. The longest period of time off work he had up until that time was 6 weeks. After having a break,
Mr Sheean was required to travel up and down to Sydney to see his mother who was dying from cancer. He then had to travel to Sydney regularly with his son, who was released on bail under the supervision of Mr Sheean and his wife after he got into some trouble with the law. At around the end of 2011, Mr Sheean was required to attend court with his son due to the bail conditions. Mr Sheean said that he attended Centrelink offices twice after he discharged. He said the staff were not helpful and he assumed this was because he attended close to closing time.
Mr Sheean claims that by the time his personal problems subsided his PTSD had become much worse and he was unable to obtain work. Mr Sheean told me he approached a former work colleague, and one time neighbour, now working in recruitment and human resources, to help him find employment. Mr Sheean told me he was upfront with
Mrs Nelson, and he insisted on telling her about all of his medical problems, in the interest of full disclosure. He told her he “suffered from PTSD, has a crook back, and cannot go outside due to skin cancers”. It appeared to me after hearing the evidence of both Mr Sheean and Mrs Nelson that Mr Sheean did all he could to argue for his limitations and was not truly looking for a job. I do not accept that he contacted
Mrs Nelson genuinely seeking employment. Rather, I find that he contacted her because he believed it would help satisfy the ameliorating provision in the legislation. Mr Sheean did not contact Mrs Nelson until after he had applied for special rate pension. Mrs Nelson gave evidence at the hearing. She said that after reading the report from psychiatrist
Dr Holm, she concluded he would not be suitable for any work. When I asked
Mrs Nelson if Mr Sheean gave her an explanation as to why he was applying for work when his psychiatrist thought he was incapable of working, she replied that he had been advised to seek work regardless of what the psychiatrist report said.
In Leane v Repatriation Commission[1] their honours held that there does not have be objective signs of active pursuit, although in the ordinary course it may be difficult to establish the requirement in the absence of such objective material. What is necessary is that the veteran must sincerely and honestly do something to try and obtain remunerative work. “Genuinely” refers to the subjective intention of the veteran.[2]
[1] [2004] FCAFC 83, [29].
[2] Leane v Repatriation Commission [2004] FCAFC 83, [28].
There is no objective evidence which I accept indicates that Mr Sheean was genuinely seeking to obtain remunerative work. Considering the evidence as a whole, I find that
Mr Sheean did not intend to seek remunerative work when he discharged from the military. He has made no genuine attempts to obtain work since that time. The substantial reason for him not seeking or obtaining remunerative work is not his PTSD. Rather, it is due to a number of factors discussed above, including his age, lack of employment skills, the accessibility of the service pension and possibly superannuation and his intention and desire to retire.
DECISION
Mr Sheean does not satisfy s 24(1)(c) or s 23(1)(c) of the Act. Nor does he satisfy the ameliorating provisions in s 24(2)(b). He therefore does not qualify for above the general rate of pension. The decision under review is affirmed.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of
Dr M Denovan, Member..............................[Sgd].........................................
Associate
Dated 22 August 2014
Date of hearing 2 June 2014 Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Mr John Cockburn, Cockburn Legal Solicitors for the Respondent Mr Bruce Williams, Department of Veterans' Affairs
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